4th Amendment Thread

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State v. Earls, 214 N.J. 564, 70 A.3d 630 (2013)

New Jersey Supreme Court

Chief Justice RABNER delivered the opinion of the Court.

Advances in technology offer great benefits to society in many areas. At the same time, they can pose significant risks to individual privacy rights. This case highlights both principles as we consider recent strides in cell-phone technology. New improvements not only expand our ability to communicate with one another and access the Internet, but the cell phones we carry can also serve as powerful tracking devices able to pinpoint our movements with remarkable precision and accuracy.

In this appeal, we consider whether people have a constitutional right of privacy in cell-phone location information. Cell phones register or identify themselves with nearby cell towers every seven seconds. Cell providers collect data from those contacts, which allows carriers to locate cell phones on a real-time basis and to reconstruct a phone's movement from recorded data. Those developments, in turn, raise questions about the right to privacy in the location of one's cell phone.

Historically, the State Constitution has offered greater protection to New Jersey residents than the Fourth Amendment. Under settled New Jersey law, individuals do not lose their right to privacy simply because they have to give information to a third-party provider, like a phone company or bank, to get service. See State v. Reid, 194 N.J. 386, 399, 945 A.2d 26 (2008). In addition, New Jersey case law continues to be guided by whether the government has violated an individual's reasonable expectation of privacy.

Applying those principles here, we note that disclosure of cell-phone location information, which cell-phone users must provide to receive service, can reveal a great deal of personal information about an individual. With increasing accuracy, cell phones can now trace our daily movements and disclose not only where individuals are located at a point in time but also which shops, doctors, religious services, and political events they go to, and with whom they choose to associate. Yet people do not buy cell phones to serve as tracking devices or reasonably expect them to be used by the government in that way. We therefore find that individuals have a reasonable expectation of privacy in the location of their cell phones under the State Constitution.

We also recognize that cell-phone location information can be a powerful tool to fight crime. That data will still be available to law enforcement officers upon a showing of probable cause. To be clear, the police will be able to access cell-phone location data with a properly authorized search warrant. If the State can show that a recognized exception to the warrant requirement applies, such as exigent circumstances, then no warrant is needed.

Having a clear set of rules serves two key goals. It protects legitimate privacy interests and also gives guidance to law enforcement officials who carry out important public safety responsibilities. Because today's decision creates a new rule of law that would disrupt the administration of justice if applied retroactively, the rule will apply to this defendant and prospective cases only.

The issue before the Court arises in the case of a burglary investigation. In an effort to locate the target and his girlfriend, whose safety was in question, the police obtained cell-phone location information from T-Mobile on three occasions during the same evening — without first getting a court order or a warrant.

The trial court found that defendant had a reasonable expectation of privacy in his cell-phone location information but admitted the evidence under the emergency aid exception to the warrant requirement. The Appellate Division affirmed on different grounds. It concluded that defendant lacked a reasonable expectation of privacy in his cell-phone location information and that the police lawfully seized evidence in plain view. The panel had no reason to consider the emergency aid doctrine.

Because we find that cell-phone users have a reasonable expectation of privacy in their cell-phone location information, and that police must obtain a search warrant before accessing that information, we reverse the judgment of the Appellate Division. To determine whether the emergency aid doctrine or some other exception to the warrant requirement applies to the facts of this case, we remand the matter to the Appellate Division for further proceedings.

Full Opinion: http://www.leagle.com/decision/In%20NJC ... v.%20EARLS

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Help! I Need Somebody (or Do I?): A Discussion of Community Caretaking and “Assistance Seizures” Under Iowa Law

John W. Sturgis VII

99 Iowa L. Rev. 1841 - May 5, 2014

ABSTRACT:

Police officers often engage in activity that extends beyond their role as criminal investigators. Whether helping with a flat tire or providing directions, police officers serve as "community caretakers" by providing aid to individuals and the general public. Some police community caretaking activities, however, are more invasive than others and constitute searches or seizures under the Fourth Amendment. Predominantly, state courts evaluate the reasonableness of these activities under the community caretaking doctrine. The formulation and application of this doctrine is far from uniform. In State v. Kurth, the Iowa Supreme Court suggested its willingness to address the community caretaking doctrine under article I, section 8 of the Iowa Constitution, which is identical to the Fourth Amendment in content. This Note argues that the court should reevaluate its treatment of a specific type of community caretaking activity, the "assistance seizure," which occurs when an officer stops a vehicle (therefore "seizing" it) for the purpose of providing aid. This Note proposes two modifications to Iowa's existing jurisprudence for determining the reasonableness of assistance seizures. First, the court should adopt a requirement that an officer act with subjective good faith in providing aid, and that his actions be objectively reasonable. Second, it should adopt the view that seizures performed to help the subject of the seizure, as opposed to the general public, are presumptively unreasonable.

Full Article: http://blogs.law.uiowa.edu/ilr/?p=3210

Link to State v. Kurth opinion.

Iowa Bar Association Traffic Stops Seminar Outline: http://c.ymcdn.com/sites/www.iowabar.or ... Traffi.pdf

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CONSENT SEARCHES OF MINORS

Megan Annitto

38 N.Y.U. Rev. L. & Soc. Change 1 (2014)

Abstract

Despite the imbalance of power between police officers and citizens, courts rarely find that a search by a police officer based upon consent was involuntary. Modern courts condone this legal fiction when dealing with adults, but it is less clear what the law requires when courts weigh the voluntariness of consent to a search against the risk of coercion inherent in police encounters with minors - however subtle or overt it may be.

When considering the voluntariness of a minor's consent to a search, courts are dramatically inconsistent about the role of a minor's age in that decision. Close analysis reveals that courts struggle to create a meaningful standard and, more often than not, appear to simply ignore minor status. That courts may consider age is not up for debate - the Supreme Court included age as a relevant factor in its seminal case addressing the standard for legality of consent searches. But as the consent search doctrine has developed, courts have shifted to a framework that frequently disregards individual characteristics of the accused in the consent analysis. Whether age can be as easily disregarded as part and parcel of this evolution, however, is a different question. Juxtaposed with the modern framework for consent searches are recent Supreme Court decisions addressing juveniles and criminal justice. These decisions reinforce and underscore that age is, in fact, different from other characteristics in the eyes of the Court.

As scholars explore the broader implications of the Supreme Court's recent attention to age in other criminal justice contexts, the role of age in the Court's consent search doctrine is even more relevant. These decisions have created an opportunity for a "second coming" of age in the consent context - a context where age has always been relevant but where courts have struggled to find a meaningful and consistent way to consider it.

This Article discusses the history of judicial treatment of consent searches and minors and the potential influence of recent Supreme Court decisions related to juveniles. The Court's consent search doctrine as a whole is at odds with scientific research; yet, the Court's recent cases about juveniles embrace such research, thus creating a tension between different strains of the Court's jurisprudence. This tension is particularly relevant now that courts arguably must meaningfully consider age in the consent context. The historical analysis reveals the challenges of incorporating age into the test for voluntariness, suggesting that additional protection for minors is warranted to address the current deficiencies in the doctrine. For example, this could include requiring a reasonable suspicion standard before law enforcement can request consent searches of minors. Finally, structural reform to aid the development and growth of better defined constitutional rights of juveniles in the criminal procedural setting is overdue.

Full Article: http://socialchangenyu.files.wordpress. ... minors.pdf

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Cops who shot and killed fleeing driver didn’t violate the Fourth Amendment, SCOTUS rules

May 27, 2014

Debra Cassens Weiss

Police officers from West Memphis, Arkansas, didn’t violate the Fourth Amendment when they shot a fleeing driver to end a high-speed chase, the U.S. Supreme Court has ruled.

The driver, Donald Rickard, was killed along with his passenger, Kelly Allen. Rickard’s surviving daughter sued for alleged Fourth Amendment violations.

Justice Samuel A. Alito Jr. wrote the opinion (PDF) for the court. “It is beyond serious dispute that Rickard’s flight posed a grave public safety risk,” Alito wrote. “The police acted reasonably in using deadly force to end that risk.”

Officers fired 15 shots at Rickard’s vehicle during the July 2004 chase in which the cars reached speeds of more than 100 miles an hour. After Rickard collided with three police cruisers, two of them in a parking lot, a police officer fired three shots into Rickard's car. Rickard drove away, nearly missing an officer, and two other officers fired 12 more shots at the vehicle.

Rickard’s daughter had contended the police officers violated the Constitution by using deadly force to stop the chase. Even if the officers were allowed to fire, she contended, the number of shots fired was excessive.

Eight justices (all except for Justice Ruth Bader Ginsburg) agreed that the initial use of deadly force did not violate the Fourth Amendment, while seven justices (all except for Ginsburg and Justice Stephen G. Breyer Jr.) agreed that the firing of 15 shots by police did not violate the Fourth Amendment. The Supreme Court was unanimous in holding that the officers were protected from suit because of qualified immunity.

The chase started after a police officer pulled over Rickard’s Accord because it had only one headlight. Police noticed an indentation in the windshield and asked Rickard if he had been drinking. Rickard said he had not. The officer asked Rickard to get out of his car because he appeared nervous and was unable to produce a driver’s license. It was at that point that Rickard sped away.

The chase was not over when the first shots were fired, Alito said, because Rickard was accelerating as his car was pressed against a police vehicle. Under the circumstances, it was reasonable to conclude that Rickard was ready to resume flight, once again posing a safety risk.

After the initial shots were fired, Rickard was still trying to flee, according to Alito. “It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended,” Alito said.

The presence of a car passenger does not change the calculus, Alito added, because the plaintiff is asserting only Rickard’s Fourth Amendment rights. “It would be perverse,” Alito wrote, “if his disregard for Allen’s safety worked to his benefit.”

The case is Plumhoff v. Rickard.

http://www.abajournal.com/news/article/ ... mendment_/

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Katz on a Hot Tin Roof: The Reasonable Expectation of Privacy Doctrine is Rudderless in the Digital Age, Unless Congress Continually Resets the Privacy Bar

Charles E. MacLean

24 Alb. L.J. Sci. & Tech. 47 (2014)

Abstract:

Technology evolves so quickly now, while courts plod along trying to force-fit new digital advancements into old precedents. Those old precedents never quite fit. But Congress, that need not await a case or controversy, and therefore can act much more quickly as or even before technological advancements emerge, can enliven the Katz reasonable expectation of privacy doctrine by resetting the privacy bar. After all, if Congress were to make a specific digital mining approach illegal, we all would have a reasonable expectation of privacy in that protected material, no matter how easy it might be for computer programmers, internet marketers, ISPs, or government agencies to access and store that material. If Congress is proactive, as exemplified by the EU approach, Courts do not have to analogize new technologies to pagers or telephone booths to determine whether the subject enjoys objective and subjective expectations of privacy in that new technology. Thus, the reasonable expectation of privacy doctrine is rudderless in the digital age – unless Congress continually steps in to reset that privacy bar.

This article (1) provides an abbreviated history of constitutional privacy protection and the Katz reasonable expectation of privacy doctrine, (2) assesses the impact of technology (and user agreements) on reasonable expectations of privacy, and (3) posits some legislative and court-driven alternatives to the Katz reasonable expectation of privacy doctrine in the digital age. Although there have been a number of commentators focusing on courts’ tenuous grasp on reasonable expectation of privacy in the digital age, the author is among the few suggesting the solution’s core lies almost entirely in the legislative branch, and does not predominantly lie in the courts.

Full Article: http://papers.ssrn.com/sol3/papers.cfm? ... id=2374389

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ABIDOR V. NAPOLITANO: SUSPICIONLESS CELL PHONE AND LAPTOP "STRIP" SEARCHES AT THE BORDER COMPROMISE THE FOURTH AND FIRST AMENDMENTS

Charles E. MacLean & Adam Lamparello

108 Nw. U. L. Rev. Online 280 (May 2014)

order agents ought not to be permitted to search digital devices absent at least reasonable suspicion.[13] Since there is, at present, a circuit split on the matter,[14] the time is ripe for the Supreme Court to resolve the dispute, but it missed that opportunity when it denied certiorari in [United States v.] Cotterman in early 2014.[15] Importantly, however, Abidor presents another opportunity. In Abidor, the Eastern District of New York recognized the majority rule that border agents need not have reasonable suspicion before conducting forensic searches of a laptop computer.[16] Abidor is significant because the court acknowledged in its holding that, “if suspicionless forensic computer searches at the border threaten to become the norm, then some threshold showing of reasonable suspicion should be required.”[17] Nevertheless, the Court refused to impose this standard “because the extremely limited resources available to conduct comprehensive forensic searches necessarily limits such searches to situations where some level of suspicion is present.”[18] We believe that courts should not wait until it has “become the norm,” particularly where, as the court acknowledged in Abidor, these searches intruded upon privacy rights.[19] Instead, the courts should act before, not after, the harm is done. If they do not act, Congress should step in to enact legislation requiring reasonable suspicion for border searches of digital devices. The Constitution requires no less.

Full Article: http://colloquy.law.northwestern.edu/ma ... rches.html

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IDEA: THE COLLAPSING CONSTITUTION

Michael D. Cicchini *

42 Hofstra L. Rev. 731 (Spring 2014)

* J.D., summa cum laude, Marquette University Law School (1999); C.P.A., University of Illinois Board of Examiners (1997); M.B.A., Marquette University Graduate School (1994); B.S., University of Wisconsin - Parkside (1990). Michael Cicchini is a criminal defense lawyer, the author of Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights (Rowman & Littlefield Publishers 2012), and a coauthor of But They Didn't Read Me My Rights! Myths, Oddities, and Lies About Our Legal System (Prometheus Books 2010). He is the author of numerous articles on criminal and constitutional law, which are available at http://www.CicchiniLaw.com. He also writes at The Legal Watchdog Blog, available at http://www.thelegalwatchdog.blogspot.com.

I. Introduction

We live in a hyper-vigilant, tough-on-crime society where the government uses expansive criminal codes to pursue arrests, convictions and punishment - even for crimes where no person or property was harmed in any imaginable sense of the word. One of our defenses against an aggressive and over-reaching government is the Constitution. But while the substantive criminal codes of our federal and state governments are growing exponentially, our constitutional protections are collapsing - or, perhaps more accurately, have collapsed.

Alarmingly, all levels of the judiciary - especially the Supreme Court - have contributed to this constitutional collapse. And the Court's justices are fully aware of what they are doing. For example, in one recent case, four justices dissented because the majority's decision turned our Fourth Amendment right of privacy into "a chimera," or delusion. 1 About a year later in a second case, four justices dissented because the majority's decision turned our Fifth Amendment right against self-incrimination "upside down." 2 Less than a year after that, in a third case, part of those earlier majorities dissented because the new majority's decision reduced our Sixth Amendment right of confrontation to "a shambles." 3 Most recently in a fourth case, an unlikely coalition of four justices dissented, this time because the majority's decision blatantly violated "the very heart of the Fourth Amendment." 4

The courts - again, courts at all levels of both our state and federal judiciaries - contribute to this constitutional collapse in at least three ways. First, courts often refuse to find constitutional violations, even in cases where the facts and the legal precedent overwhelmingly demonstrate that a violation has, in reality, occurred. Dissenting justices on the Supreme Court have argued that, in refusing to acknowledge these constitutional violations, their colleagues are guilty of "not only a gross distortion of the facts," but also "a gross distortion of the law." 5

Second, when courts have no choice but to concede that a constitutional violation has occurred, they are eager to create an exception into which the offending government agent's behavior will fit. In this context, dissenting justices on the Supreme Court have argued that their colleagues' "distorted view creates an expansive exception" to the particular constitutional rule at issue, thus allowing the Court to circumvent our rights. 6 Further, these expansive exceptions can have the perverse effect "to burden uniquely the sole group for whom the [Constitution's] protections ought to be most jealously guarded: people who are innocent of the State's accusations." 7

And third, even when courts are forced to acknowledge a constitutional violation and further cannot find or create an exception to the rule, they can simply refuse to grant the defendant any remedy for the violation of his rights. Dissenting justices on the Supreme Court have argued that, quite obviously, a constitutional right ceases to be "something real" when it is stripped of all meaningful remedies for its violation.

Full Article: http://www.cicchinilawoffice.com/upload ... final2.pdf

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THE "ORWELLIAN CONSEQUENCE" OF SMARTPHONE TRACKING: WHY A WARRANT UNDER THE FOURTH AMENDMENT IS REQUIRED PRIOR TO COLLECTION OF GPS DATA FROM SMARTPHONES

Matthew D. Jones

62 Clev. St. L. Rev. 211 (2014)

Abstract

This Note argues that a warrant under the Fourth Amendment, rather than under the ECPA or no warrant at all, must be obtained prior to collection of GPS data from a user’s smartphone, whether payment for the phone is contractual or pay-as-you-go. This Note discusses smartphones and how the purpose of the Fourth Amendment applies to smartphone tracking. This Note also discusses the legislative intent behind the ECPA and its inapplicability to smartphone tracking. In addition, this Note addresses United States Supreme Court decisions regarding electronic monitoring by law enforcement, as well as the development and present use of GPS technology.

Full Article: http://engagedscholarship.csuohio.edu/c ... 62/iss1/9/

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A Primer on the NSA/DEA Special Operations Division Information Sharing Program

In August, reporters at Reuters revealed that the Drug Enforcement Agency (DEA) has a Special Operations Division (SOD) that shares information gathered via National Security Agency (NSA) terrorism spying authorities with state and local law enforcement agencies to use in non-terrorism criminal investigations. The SOD then encourages those local agencies to use “parallel construction,” or lawful reasons to investigate the tips shared with them, without ever mentioning the tip in investigation files, or even sharing the information with prosecutors, defense lawyers, or judges. Such information sharing has led to convictions for violations of the Internal Revenue Service Code, the Foreign Corrupt Practices Act, and Environmental Protection Agency regulations, to name a few. This webinar instructs criminal defense lawyers on how to raise challenges to this information sharing program in pending and closed cases, including discovery requests, motions to compel, and motions for new trial.

Imbedded Video: http://www.nacdl.org/criminaldefense.aspx?id=30345

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National Security and the Constitution: A Conversation Between Walter F. Mondale and Robert A. Stein

by Walter F. Mondale, Robert A. Stein, & Monica C. Fahnhorst

98 Minn. L. Rev. 2011 (June 2014)

Professor Robert A. Stein, Dean of the University of Minnesota Law School for fifteen years and former Chief Operating Officer of the American Bar Association, endowed this lecture series to enrich the program of the University of Minnesota Law School by inviting leaders of the bench and bar and of the governments of the United States and other nations to deliver an annual lecture on a topic of national or international interest. Former Vice President of the United States Walter F. Mondale was invited to speak at the Inaugural Stein Lecture and engaged in a conversation with Professor Stein regarding the juxtaposition of national security and the Constitution.

...

The United States needs a strong, and mostly secret, intelligence service. The United States faces many dangerous threats and it must fully prepare for and meet them: however, this must be done in a way that protects our constitutional lib- erties. The idea that security requires the sacrifice of our con- stitutional rights is a false choice. In fact, it is the other way around. A free and open nation will face its true problems more effectively, earn the public’s trust more completely, and avoid the recurrent abuse of power that predictably arises from unaccountable government.

Full Article: http://www.minnesotalawreview.org/artic ... t-a-stein/