Tag Archives: Search and Seizure

The Supreme Court recognizes privacy right to cell phone location history.

On May 22, 2018, the U.S. Supreme Court issued an important decision extending the Fourth Amendment right against unlawful search and seizure into the digital age. In Thomas Ivory Carpenter v. United States, the Court sided with the privacy rights of cellphone users over law enforcement using private tracking data compiled and saved by cell phone companies. At issue was whether the Fourth Amendment required law enforcement to obtain a warrant before accessing cell phone location history from cell phone service providers.

The Supreme Court recognized the importance and prominence of cell phones in an individual’s daily life and the right to privacy of the sensitive information generated by the cell phone’s use.

The Court stated that there are 396 million cell phone service accounts in the United States for a Nation of 326 million people. Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called “cell sites” mounted on towers, light posts, flagpoles, church steeples, or the sides of buildings. Cell sites typically have several directional antennas that divide the covered area into sectors. Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site. Cell phones, smartphones, tablets, and other devices tap into the wireless network several times a minute whenever their signal is on. Each time the smart device connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). Wireless carriers collect and store CSLI for their own business purposes, including finding weak spots in their network and applying “roaming” charges when another carrier routes data through their cell sites. In addition, wireless carriers often sell aggregated location records to data brokers, without individual identifying information. Carriers retained CSLI for the start and end of incoming calls,text messages and routine data connections. Accordingly, modern cell phones generate increasingly vast amounts of increasingly precise CSLI.

In December of 2010, there were a series of robberies in Michigan and Ohio of cell phones, ironically. Several cell phones stores were robbed of their cell phones at gunpoint. Eventually, the FBI arrested four men suspected of the robberies. One of the men confessed and provided names and cell phone numbers of accomplices including the petitioner, Timothy Carpenter.

Prosecutors applied for court orders under the Stored Communications Act (“SCA”) to obtain cell phone records for Carpenter and several other suspects. The SCA permits the Government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” The SCA stops short of requiring that prosecutors demonstrate probable cause, which is necessary to obtain a warrant.

Federal Magistrate Judges issued two orders directing Carpenter’s wireless carriers to disclose the CSLI for Carpenter’s telephone at call origination and at call termination for incoming and outgoing calls during the four-month period when the string of robberies occurred.

Law enforcement was able to track Carpenter’s locations and connect Carpenter to the crimes by obtaining more than 100 days’ worth of his smartphone location data records without a warrant. The location data records placed his phone in over 12,000 locations including when he was at church and whether or not he spent the night at home.

Before his trial, Carpenter argued that obtaining the records constituted a Fourth Amendment search, and therefore the police should have needed a warrant. His motion was denied, and the Sixth Circuit Court of Appeals later upheld the case.

The Supreme Court reversed and remanded with Chief Justice Roberts providing the deciding vote and writing the majority opinion.

The Court held that the acquisition of Carpenter’s CSLI records was a Fourth Amendment search. The Fourth Amendment protects not only property interests but certain expectations of privacy as well. Thus, when an individual “seeks to preserve some thing as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause.

The Court further held that the digital data at issue, personal location information maintained by a third party, does not fit neatly under existing precedents but lies at the intersection of two lines of cases. One set of cases addressing a person’s expectation of privacy in his physical location and movements. The other set of cases addresses a person’s expectation of privacy in information voluntarily turned over to third parties.

The third-party doctrine, as first set forth in United States v. Miller, 425 U. S. 435 (no expectation of privacy in financial records held by a bank), and Smith v. Maryland, 442 U. S. 735 (no expectation of privacy in records of dialed telephone numbers conveyed to telephone company) holds that information customers voluntarily provide to a third party is outside the bounds of Fourth Amendment protections and, therefore, law enforcement does not need a warrant in order to access that information.

The Supreme Court stated that the third-party doctrine partly does not apply given “the nature of the particular documents sought” and “legitimate ‘expectation of privacy’ concerning their contents.” The Supreme Court cited prior case law where the court had already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements. Additionally, the Supreme Court recognized in many way CSLI is not voluntarily provided by the cell phone users but automatically obtained when the cell phone is used in some form.

The Supreme Court found the Government did not obtain a warrant supported by probable cause before acquiring Carpenter’s cell-site records. It acquired those records pursuant to a court order under the SCA, which required the Government to show “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation” which falls well short of the probable cause required for a warrant.

Advertisements

1 Comment

Filed under Constitutional Law, Uncategorized

Supreme Court declines to extend automobile exception to Fourth Amendment to vehicles parked in driveways or curtilage of home.

In yet another victory for Fourth Amendment advocates, the Supreme Court on May 29, 2018 ruled against a warrantless search and examination of motorcycle under a tarp in the driveway of a home.   In the matter of Ryan Austin Collins vs. Virginia, No. 16-1027, the Court in a 8-1 decision reversed the lower court’s decision which upheld a warrantless search of motorcycle under the so-called automobile exception to the Fourth Amendment.

An orange and black motorcycle was believed to have been stolen and in the possession of Mr. Collins. Apparently Mr. Collins was proud of his accomplishment and posted photos of the stolen motorcycle parked in his driveway on his Facebook profile. The police discovered the photos on Mr. Collins’ Facebook profile, drove to his house and observed what appeared to be the motorcycle under a tarp parked in Mr. Collin’s driveway. The arresting police officer acting without a search warrant, walked to the top of the driveway, removed the tarp, confirmed that it was the stolen motorcycle, returned the tarp, and waited for Mr. Collins to return.

Upon his return Mr. Collins was arrested and charged with receiving stolen property. At trial, Mr. Collins sought to suppress the evidence on the grounds that the police had violated his Fourth Amendment rights when they had trespassed on Mr. Collins’s house curtilage (driveway) to conduct a warrantless search. Mr. Collins was convicted of receiving stolen property. The conviction was affirmed by the Virginia Court of Appeals who found “numerous exigencies justified both the entry onto the property and the moving of the tarp to view the motorcycle and record its identification number.” The Virginia Supreme Court also affirmed the conviction holding that the warrantless search was justified under the so-called automobile exception to the Fourth Amendment. The State Supreme Court held that the police officer had probable cause to believe that the motorcycle was contraband, and that the warrantless search was justified.

The central question before the Supreme Court was whether the so-called automobile exception to the Fourth Amendment, which allows the police certain latitude to search vehicles on public streets without a warrant, also allows the police to walk up a driveway without a warrant and search a vehicle parked in the area near a house.

The so-called automobile exception, first articulated in Carroll v. United States, 267 U.S. 132 (1925), allows police to search a car without a warrant if the car is “readily mobile” and they have probable cause to believe that it contains evidence of a crime.

The Court began its Fourth Amendment discussion by examining the intersecting case law of the so-called automobile exception to the warrant requirement with case law extending the protection against warrantless searches to the curtilage of a home. The “curtilage” of a home being the area immediately surrounding the house, where residents expect privacy.

In its near unanimous opinion written by Justus Sonia Sotomayor, the Court held that the driveway where Mr. Collins’ motorcycle was parked was part of the curtilage protected by the Fourth Amendment. Justice Sotomayor further wrote, “To allow an officer to rely on the automobile exception to gain entry to a house or its curtilage for the purpose of conducting a vehicle search would unmoor the exception from its justifications, render hollow the Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application,”

The court explained that the justification for the automobile exception doesn’t consider a resident’s privacy interest in his home and its curtilage at all; rather, the rationale rests on the twin ideas that cars can easily be moved and are subject to regulation simply by virtue of being on the roads.

The stated that there are no Supreme Court’s cases that indicates the automobile exception allows a police officer to enter the home or its curtilage without a warrant to search a vehicle – if anything, the court has emphasized the need to treat “automobiles differently from houses.”

The sole dissent in the case was filed by Justice Samuel Alito, who stated that “The Fourth Amendment prohibits ‘unreasonable’ searches,” and that, “What the police did in this case was entirely reasonable.”

2 Comments

Filed under Constitutional Law, Uncategorized

U.S. Supreme Court Finds That An Unauthorized Driver In Lawful Possession of Rental Car Has A Right To Privacy

On May 14, 2018, the United States Supreme Court held that people who borrow rental cars from friends are afforded the same protections against unlawful searches as the authorized driver. In the matter of Terrence Byrd v. United States, 2018 WL 2186175, the Supreme Court justices unanimously held “ the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy”.

In September of 2014, Pennsylvania State Troopers pulled over a car driven by Terrence Byrd. Byrd was the only person in the rental car which had been rented by his fiancée, Latasha Reed in Wayne, New Jersey. Reed rented the car with Byrd present but failed to list Byrd as authorized driver on the rental agreement. The rental agreement specifically stated that “PERMITTING AN UNAUTHORIZED DRIVER TO OPERATE THE VEHICLE IS A VIOLATION OF THE RENTAL AGREEMENT.”

Shortly after Reed rented the car, Byrd returned with the car to his home in Patterson, New Jersey to get his belongings and later departed in the car alone for Pittsburgh, Pennsylvania. After driving three hours, Byrd was stopped by Pennsylvania Troopers on Rt. 81, near Harrisburg, Pennsylvania.

The Troopers became suspicious of Byrd because he was driving with his hands at the “10 and 2” position on the steering wheel, sitting far back from the steering wheel, and driving a rental car. Based on these observations, the Troopers decided to follow Byrd and, a short time later, stopped him for a possible traffic infraction.

In the course of the traffic stop the troopers learned that the car was rented and that Byrd was not listed on the rental agreement as an authorized driver. The Troopers discovered that Byrd had identification under two different possible alias. The Troopers further discovered that Byrd had prior convictions for weapons and drug charges as well as an outstanding warrant for a probation violation in New Jersey. Byrd then revealed he had a “blunt” in the car and offered to retrieve it for them. The Troopers declined Byrd’s offer and continued to seek consent to search the car, though they stated they did not need consent because he was not listed on the rental agreement. The Troopers began a thorough search of the car and trunk. In the trunk, the Troopers found a laundry bag containing body armor and found 49 bricks of heroin.

The evidence was turned over to federal authorities, who charged Byrd with distribution and possession of heroin with the intent to distribute in violation of 21 U. S. C. §841(a)(1) and possession of body armor by a prohibited person in violation of 18 U. S. C. §931(a)(1). Byrd moved to suppress the evidence as the fruit of an unlawful search. The United States District Court for the Middle District of Pennsylvania denied the motion, and the Court of Appeals for the Third Circuit affirmed.

The Court of Appeals recognized that a “circuit split exists as to whether the sole occupant of a rental vehicle has a Fourth Amendment expectation of privacy when that occupant is not named in the rental agreement”; but it noted that Circuit precedent already had “spoken as to this issue . . . and determined such a person has no expectation of privacy and therefore no standing to challenge a search of the vehicle.”

In its Opinion, the Supreme Court recognized that one who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it, but it is more difficult to define and delineate the legitimate expectations of privacy of others. The Court stated that a person does not always need to have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it.

On the other hand, the Supreme Court also noted that legitimate presence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy, because it “creates too broad a gauge for measurement of Fourth Amendment rights.”

The Supreme Court explained that “[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. The Supreme Court further noted that the two concepts in cases like Byrd’s case are often linked. “One of the main rights attaching to property is the right to exclude others,” and, in the main, “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.”

In rejecting the Government’s position that only authorized drivers of rental cars have expectations of privacy in those vehicles, the Court saw no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it.

The central inquiry was whether Byrd had lawful possession of the car.  The Court reasoned that under some circumstances ‘wrongful’ presence at the scene of a search would not enable a defendant to object to the legality of the search. A car thief would not have a reasonable expectation of privacy in a stolen car. However, Byrd was a permissive driver of the rental car and therefore, had the right to exclude others and a reasonable expectation of privacy.

The Supreme Court vacated the judgment of the Court of Appeals and remanded the case to further consider two of the Government’s arguments: that one who intention- ally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no better situated than a car thief; and that probable cause justified the search in any event.

Attorneys arguing on behalf of Byrd argued that 115 million car rentals take place annually in the United States and if the government won, police would have an incentive to pull over a rental car driver who commits a traffic violation because police will know they can search the car if the driver isn’t on the rental agreement.

1 Comment

Filed under Constitutional Law, Uncategorized

Sometimes the Courts Get it Right and Actually Defend the Constitution

Story recently posted on the Huffington Post regarding the protection of our most basic rights…

 – Edward H. Levi Distinguished Service Professor of Law, University of Chicago

Stop-and-Frisk: Why We Have Courts
Posted: 08/13/2013 12:27 am

Every once in a while, I burst with pride in the American legal system. It doesn’t happen as often as I would like, but Monday was such a day.

On Monday, Judge Shira A. Scheindlin, a federal judge in New York City, handed down her decision in Floyd v. The City of New York. The plaintiffs in Floyd challenged the constitutionality of New York City’s stop-and-frisk policy. In a truly remarkable and courageous opinion, Judge Scheindlin held that policy unconstitutional.

The Fourth Amendment to the United States Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.” To the Framers of our Constitution, this was a fundamental precept of American freedom. This guarantee preserves our privacy and dignity, and reaffirms that in a self-governing society the government must respect the rights of the individual.

As the Supreme Court recognized more than a century ago, “No right is held more sacred, or is more carefully guarded, by the . . . law than the right of every individual to the possession and control of his own person, free from all restraint or interference, unless by clear and unquestionable authority of law.”

To this end, the Supreme Court has long held that a police officer cannot constitutionally search or seize an individual unless the officer has probable cause to believe that the individual has committed, or is about to commit, a crime.

In 1968, however, in a case called Terry v. Ohio, the Court, in an opinion by Chief Justice Earl Warren, carved out a carefully limited exception to the probable cause requirement, holding that a police officer can constitutionally “stop” an individual on the street for questioning if the officer has “reasonable grounds to suspect” that the person has committed, is committing, or is about to commit a crime, and that the police officer can constitutionally “frisk” that person for weapons if he has “reasonable grounds to suspect” that the individual is “armed and presently dangerous.”

The Court was fully aware that this was a constitutionally precarious decision, for it authorized “substantial interference” with the liberty and dignity of the individual by police officers whose judgment will naturally be “colored by their primary involvement in ‘the often competitive enterprise of ferreting out crime.'” Moreover, the Court acknowledged that this practice could very well “exacerbate police-community tensions in the crowded centers of our Nation’s cities.”

Nonetheless, Chief Justice Warren held that the practice of stop-and-frisk, if carefully administered and implemented, could serve important law enforcement goals and was therefore not an “unreasonable search and seizure” in violation of the Fourth Amendment.

In her decision in Floyd, Judge Scheindlin found that the New York Police Department had used stop-and-frisk an astonishing 4.4. million times between 2004 and 2012. After carefully scrutinizing the Department’s use of this practice, she concluded that the activities of the Department violated not only the Fourth Amendment, but also the provision of the Fourteenth Amendment guarantee all persons “the equal protection of the law.”

Judge Scheindlin found that in 88 percent of these stops, the individual was innocent of any wrongdoing; that in 98.5 percent of the frisks, no weapon was found; that 83 percent of the Department’s stop-and-frisks were directed at blacks and Hispanics, even though blacks and Hispanics make up only 52 percent of the population; that the police were 40 percent more likely to use force when dealing with blacks and Hispanics than when dealing with whites; and that the officers were 40 percent more likely to find weapons and 28 percent more likely to find contraband when they frisked whites than when they frisked blacks and Hispanics.

Judge Scheindlin therefore held that, although the use of stop-and-frisk is constitutionally permissible if it is undertaken in accord with constitutional requirements, the New York City Police Department had in fact employed this practice in a manner that blatantly violated both the Fourth Amendment and the Equal Protection Clause of the United States Constitution.

A decision like the one in Floyd illustrates why we need a strong and independent federal judiciary. For most New Yorkers, the Police Department’s stop-and-frisk policy seemed something to applaud. It helped bring down crime and made the City safer. Moreover, most New Yorkers knew to a moral certainty that they themselves would never be subjected to the indignity and public humiliation of a stop-and-frisk. So, why not have such a policy?

The American judiciary exists, first and foremost, to protect the constitutional rights of those who are not in the majority. It exists to ensure that our government treats all of us with respect. It exists to protect the rights of the disadvantaged, the oppressed, the powerless and the despised, even when disadvantaging them advantages the rest of us.

Three cheers for Judge Scheindlin. She is what the American judicial system, at its best, is all about.

1 Comment

by | August 13, 2013 · 11:34 pm

Email and the Fourth Amendment

Almost nothing on the internet is as private as people often believe it to be. Many people imagine their email conversations as similar to spoken conversations, where the information stays between the participants of the conversation unless one or both should choose to disclose it. However, in actuality, an email conversation, like almost anything else that a user transmits via their Internet Service Provider (ISP) is nowhere near as private as a conversation that takes place in person.

            Data transmitted by a particular ISP (such as Verizon or Comcast) is stored on the ISP’s servers. Although the privacy agreements of the ISP commonly state that the employees of the ISP will not view personal content, the information transmitted is usually stored, scanned, and can be voluntarily disclosed to the police or subpoenaed in a case against the internet user. Sometimes the information is kept for months or even years, meaning that any conversations that take place via the internet may include three viewers- the sender, the receiver, and the ISP. The same is true for email servers, such as Yahoo or Gmail, which also store a person’s email on their servers, meaning that the email service also has the power to “eavesdrop” on the conversation. Finally, school, office and home networks can all be set up to store all of the information transmitted through the network, which creates a fifth potential eavesdropper for any online communications.

            Most troubling of all, because the advent of communication and networking technology is so new, courts have yet to clearly define whether a person’s email, chat and search history is protected by the Fourth Amendment at all. Some courts have found that there is a Fourth Amendment protection for “content based” communications, such as personal email, but other courts have found that there is not. Ultimately, “[T]he extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question.” Quon v.  Arch Wireless Operating Co., 529 F.3d 892, 904 (9th Cir.  2008).

    Until this issue is fully resolved in the law, it is important to remember that any data transmitted online could potentially be saved and stored by one or more third parties. If you have any questions or concerns about this, please feel free to contact our office for a free initial consultation.

Leave a comment

Filed under Uncategorized