Hall v. Florida


Thanks for joining us on this special, Veteran’s Day edition of the Criminal Law Review blog!  One of our talented staff editors, Jennifer Hudson, wrote this piece regarding the Supreme Court’s take on the standards for punishment of mentally disabled individuals.

Hall v. Florida

Hall was sentenced to death by a Florida jury after he and an accomplice kidnapped, raped, beat, and murdered a pregnant 21-year-old newlywed and killed a sheriff’s deputy attempting to arrest them outside a convenience store they were planning to rob.  Florida did not consider intellectual disability a statutorily mitigating factor at the time.  In 1987, the Supreme Court ruled in Hitchcock that capital defendants must be allowed to present non-statutory mitigating evidence.  Hall was resentenced and again received the death penalty after presenting substantial evidence of his intellectual disability in the form of lay and expert testimony.  Although the sentencing court found substantial evidence to support the finding that Hall had been mentally retarded his entire life, it stated mental retardation cannot be used to excuse moral culpability, and the Florida Supreme Court affirmed Hall’s sentence.

In 2002, the Supreme Court in Atkins held execution of mentally retarded persons constitutes cruel and unusual punishment under the Eighth Amendment. Hall filed a motion in 2004 that he cannot be executed by Florida based on his intellectual disability.  More than five years later, Florida held a hearing where Hall presented evidence of his disability, including an IQ score of 71 (he had received nine IQ evaluations, with two IQ scores below 70, but the court excluded the scores for evidentiary reasons).  However, Florida law requires an IQ test score of 70 or below before a defendant can present any additional evidence of intellectual disability, thus Hall was found not to meet the threshold requirement.  The Florida Supreme Court held the 70-point threshold was constitutional and denied Hall’s appeal. Hall applied for a writ of certiorari from the U.S. Supreme Court to challenge the Florida statute.

The issue being decided by the Supreme Court is whether a Florida statute violates the Eighth Amendment’s prohibition against cruel and unusual punishment when it precludes presentation of evidence regarding a capital defendant’s intellectual disability if the defendant’s IQ score is above 70.

The nation’s highest court found that the Florida statute denying a capital defendant’s presentation of evidence regarding an intellectual disability based on an IQ score of 70 or more is unconstitutional because it creates an unacceptable risk that people with intellectual disabilities will be executed in violation of the Eighth Amendment. (5-4 decision; Justice Alito dissenting, joined by Chief Justice Roberts, and Justices Scalia and Thomas).

Because Atkins did not specify how states should determine whether a capital defendant has an intellectual disability, the Supreme Court began by looking at how intellectual disability is defined by the medical community and if the Florida statute is consistent with that definition.  While the Court found the statute on its face is consistent with the definition of intellectual disability used by medical professionals, it found that it has been applied too narrowly by the Florida Supreme Court.  By holding a capital defendant with an IQ score of 70 or more is barred from presenting additional evidence of an intellectual disability, the Court found Florida law disregards established medical practices by failing to allow the consideration of other evidence of a disability (evidence of past performance, environment, and upbringing) and failing to recognize that an IQ score should be read as range, rather than a fixed number.

The Supreme Court then examined how other states determine whether a defendant has an intellectual disability to see whether the Florida statute comports with society’s views of humane treatment.  It found that 41 states have rejected a strict 70-point cutoff, recognizing the inherent margin of error in IQ testing, with only two other states mandating a strict 70-point cutoff (Virginia and Kentucky) as a threshold issue.  The Court found every other state (other than Virginia) whose law has been interpreted by its courts has sided contrary to Florida.

The Court then looked Atkins, which, although it left the issue of how the determine an intellectual disability to the states, mentioned the error inherent in IQ testing.  The Court found that states’ ability to determine what constitutes an intellectual disability does not give them “unfettered discretion” to define the scope of the protection afforded by the Eighth Amendment because they are bound to adhere to the clinical definitions of intellectual disability.

Finally, the Supreme Court ruled the Florida statute was unconstitutional, as interpreted by the Florida courts, because of the unacceptable risk that intellectually disabled defendants would be executed by denying any defendant with an IQ score above 70 the ability to present additional evidence of an intellectual disability.  The Court mentioned that not one medical professional supported the 70-point cutoff.  Of particular interest was the fact that IQ scores are approximations that are not intended to be final, infallible assessments of intellectual ability.  The Court found a state that refuses to acknowledge the inherent uncertainty in IQ tests runs the risk of executing a person with an intellectual disability.  The Court ruled states must allow defendants whose IQ score falls within the tests margin of error to present additional evidence of intellectual disability.  It held the Florida statute violates the Eighth Amendment prohibition against cruel and unusual punishment, reversed the Florida Supreme Court, and remanded the case.

How did the courts come up with the 70 IQ cutoff in the first place? Could a black-letter rule be made to prevent intellectually challenged individuals from falling through the “cracks” of our legal system?  Please tell us what you think by commenting below.

US v. $85,688.00


The below submission comes from one of our dedicated staff editors, Jackson Gardner.  Enjoy!

United States v. $85,688.00 in U.S. Currency

2014 WL 4237377 (10th Cir. Aug. 28, 2014)

FACTS

On September 15, 2008, Trooper Chamberlin Neff (“Neff”), who was parked in the median on Interstate 80 to monitor traffic, saw Andrew Wiley’s (“Wiley”) 2002 Toyota Tundra truck drive past. United States v. $85,688.00 in U.S. Currency, 2014 WL 4237377, at *8 (10th Cir. Aug. 28, 2014).  As the truck drove by, Neff ran Wiley’s Missouri license plate to check his registration. Id. Neff’s search of the license plate came back as “not on file.” Id. After Neff’s dispatch reached the same result, Neff stopped Wiley’s truck to investigate the registration. Id.

Once Wiley pulled his truck to the side of the interstate, Neff walked to the passenger’s side window without inspecting the truck’s license plate, which was clearly brand new and bore the markings of a properly registered vehicle. Id. at *9.  When Neff arrived at the passenger’s side window, Wiley rolled down the window three or four inches and Neff asked Wiley if he could open the passenger’s side door, and Wiley refused. Id. Neff then asked Wiley for a driver’s license and ultimately asked Wiley to exit the truck and to bring his license and registration over to Neff’s patrol car. Id.

After Wiley accompanied Neff to the patrol car, Neff told Wiley that he’d stopped him because the truck’s registration was not on file. Id. Wiley explained that he had just bought the car and provided Neff with the “original motor vehicle title receipt” for the truck along with his driver’s license and insurance card. Id.

While the two men waited for the police dispatch to run Wiley’s information, Neff proceeded to ask Neff a slew of questions including questions about where Wiley was going and for what reason. Id. Wiley responded that he was driving to California to see family, via a scenic route because he was recently laid off. Id. at *6.  After about seven minutes passed, the police dispatch confirmed that they had no additional information on the  registration records, but informed Neff that Wiley’s record showed an arrest for marijuana possession in 2001. Id. at *9.

In response to the information about Wiley’s prior arrest, Neff asked dispatch to contact Wiley’s family and friends in California while he continued questioning Wiley about the prior marijuana conviction. Id. at *10.  Dispatch eventually contacted Neff and informed him that she was unable to contact Wiley’s family. Id. Neff then walked over to the truck and confirmed that the VIN number on the receipt matched the VIN number on the truck’s dashboard and inside the truck’s doorframe. Id. While checking the doorframe, Neff noticed a can of Febreze in the truck before returning the title receipt to Wiley for the second time. Id.

While Wiley was walking back to his truck, Neff stopped him yet again and asked if he could ask more questions. Id. After Wiley declined the request Neff persisted, stating that he believed that criminal activity was afoot and asked Wiley if he could search the truck and then asked for consent to walk a drug dog around the truck, both of which Wiley refused. Id. Neff proceeded anyways, stating that he had reasonable suspicion. Id. The drug dog search uncovered $85,668 in cash along with a small amount of marijuana. Id.

            Consequently, the government filed a foreiture action against the cash found during Neff’s search. Id. Wiley claimed ownership of the cash and moved to suppress all evidence obtained from the search. Id. Wiley’s motion to suppress was denied by the district court, which found that the “not on file” registration justified the initial stop. Id. Additionally, the court found that Neff had reasonable suspicion of drug activity to deploy the drug dog and that the drug dog’s alert gave rise to probable cause to search the truck. Id. Wiley appealed this decision to the United States Court of Appeals in the Tenth District. Id.

 

ANALYSIS

 

            The issue entertained by the court was whether or not Neff had reasonable suspicion to investigate the validity of Wiley’s registration.  Stopping an automobile and detaining its occupants constitute a seizure within the meaning of the Fourth Amendment. Id. at *11 (citing to Delaware v. Prouse, 440 U.S. 648, 653 (1979)).   Further, “certain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime.” Florida v. Royer, 460 U.S. 491, 498 (1983).  However, “when, as here, an officer merely suspects a traffic violation, he may not continue to detain the driver for these purposes after reasonable suspicion has dissipated.” $85,688 in US Currency, 2014 WL 4237377 at *12.

Here, all three Judges agreed that Neff had reasonable suspicion to stop Wiley’s truck because of the “not on file” response to his registration inquiry.  None of the Judges agreed on when this reasonable suspicion dissipated. Judge Phillips contended that Neff had reasonable suspicion as to the validity of Wiley’s registration dissipated when Neff saw, or should have seen, Wiley’s brand new license plate because Neff should have seen that the license plate bore all the markings of a properly registered vehicle. Id. at *12.  Additionally, Judge Phillips argued that Neff’s reasonable suspicion that the car was stolen dissipated once Wiley presented Neff with his title receipt. Id.

On the contrary, Judge Ebel contends that Neff had reasonable suspicion to detain and question Wiley up until the point when Neff returned Wiley’s driver’s license and title receipt and told him that he could leave. Id. at *1.  Judge Ebel acknowledged the holding in Florida v. Royer, which stated that “the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” 460 U.S. at 500.  However, Judge Ebel explained that the Royer court was speaking to the length of a stop, not whether or not the least intrusive means were employed. $85,688 in US Currency, 2014 WL 4237377 at *2.  Thus, Judge Ebel concluded that Neff’s decision to question Wiley was within his discretion, but Judge Ebel also concluded that Neff’s reasonable suspicion dissipated once he verified the VIN numbers, examined the title receipt, and returned all of the documents to Wiley. Id. at *3.

Thus, as the majority held that Neff’s reasonable suspicion as to Wiley’s registration was warranted.  More importantly, they held that Neff’s reasonable suspicion dissipated long before he developed a new suspicion that Wiley was involved in a drug crime.  As a result, the court reversed the district court, holding that Neff’s search of Wiley’s truck was a violation of the Fourth Amendment because Neff’s articulable reasonable suspicion had dissipated before the search occurred.

Chief Judge Briscoe delivered an in-depth dissent arguing that the district court’s denial of the motion to suppress ought to be upheld.  Chief Judge Briscoe contended that not only did Neff have reasonable suspicion to stop Wiley, but Neff also had grounds for a ‘new’ reasonable suspicion that Wiley was involved in a drug crime.  Chief Judge Briscoe grounded his opinion in several facts that he believed to give rise to reasonable suspicion.  First, Chief Judge Briscoe argued that Wiley’s travel plans, namely driving on Interstate 80 to get to California, were a factor in favor of reasonable suspicion.  Second, Chief Judge Briscoe believed that Wiley’s criminal history, and his failure to be forthcoming about his marijuana conviction, weighed in favor of reasonable suspicion.  Lastly, Chief Judge Briscoe contended that the combination between Wiley only opening his passenger-side window a few inches and the can of Frebreze gave rise to reasonable suspicion because drug traffickers commonly use aerosol scents to cover up the smell of contraband.  Through a totality of the circumstances test, Chief Judge Briscoe came to the conclusion that Neff had reasonable suspicion throughout the entire interaction with Wiley.

CONCLUSION

 

The majority  were unconvinced by Chief Judge Briscoes’ arguments.  They held that Wiley’s travel plans were not so unusual to give rise to reasonable suspicion.  Likewise, the majority thought that using criminal history as grounds for reasonable suspicion was a dangerous and slippery slope with respect to future cases.  Next, the majority found it to be completely reasonable for Wiley to have a can of air freshener in his car for a long road trip, noting that the lack of any air freshener smell actually cut against the finding of reasonable suspicion.  Finally, the majority argued that Wiley was within his rights to refuse to open his window more than a few inches and to use this as a factor supporting reasonable suspicion of criminal activity would, in itself, be a violation of the Fourth Amendment.  Ultimately, the court held that Wiley’s motion to suppress the evidence found in the search was wrongfully denied by the district court, and thus this case was reversed and remanded.

Do you believe this case was decided correctly? Please share your comments and thoughts below.

State v. Heien (Search and Seizure)


Hello folks and please enjoy the below submission written by Kevin Benninger, one of our successful staff editors.  Stay tuned for more!

State v. Hein

FACTS

On the morning of April 29, 2009, Sergeant Matt Darisse and Officer Ward of the Surry County Sheriff’s Department (North Carolina) observed a Ford Escort apply its brakes when approaching a slower vehicle on Interstate 77. State v. Heien, 366 N.C. 271, 272 (2012). The Escort’s right rear brake light failed to illuminate in the process of braking, so Sergeant Darisse decided to stop the Escort. Id. After the Escort came to a complete stop, Sergeant Darisse approached the vehicle and noticed that the brake light “flickered on.” Id.

Sergeant Darisse initiated a conversation with the driver of the vehicle, Maynor Javier Vasquez, and he informed Vasquez that he was being stopped “for a non-functioning brake light.” Id. Sergeant Darisse then added that he would only issue a warning for the malfunctioning brake light if Vasquez’s license and registration “checked out.” Id. Since both the license and registration did check out, the officer proceeded to give Vasquez a warning ticket. Id. During the stop, Sergeant Darisse began to suspect that the Escort might contain contraband because he received conflicting information regarding the destination of the vehicle from Vasquez and his passenger, the defendant, Nicholas Brady Heien. When Sergeant Darisse approached the vehicle, he also noticed Heien lying down in the backseat of the vehicle under a blanket. State v. Heien, 741 S.E.2d 1, 5 (N.C. Ct. App. 2013). Based on the conflicting information as well as the bizarre behavior of Heien, Sergeant Darisse asked, and was granted permission to search the vehicle. State v. Heien, 366 N.C. at 272; State v. Heien, 741 S.E.2d at 5.

Upon searching the vehicle, Sergeant Darisse found a blue duffle bag in the “back hatch” area of the Escort. Id. In “one of the side compartments” of the bag, Sergeant Darisse found “a white plastic grocery bag” containing “a sandwich bag wrapped in a paper towel he later determined to contain what “appeared to be… cocaine.” Id. A field test of the powered substance confirmed that it was in fact cocaine. Id. at 272-73. Upon that discovery, both Vasquez and Heien were arrested and charged with trafficking cocaine. Id. at 273.

Heien sought to suppress the evidence obtained during the search of the Escort, alleging that the stop was an illegal seizure in violation of the Fourth Amendment of the United States Constitution and Sections 19 and 20 of Article I of the North Carolina Constitution. Id. Heien argued that the North Carolina General Statutes do not require that both brake lights be in good working order. Id. He argued that, because of the aforementioned reasons, the stop was unreasonable and the subsequent search should be deemed unconstitutional. Id.

In 2010, the Surry County Superior Court found that the officer’s stop was valid and denied the motion to suppress. State v. Heien, 741 S.E.2d at 2. Heien then pled guilty to attempted trafficking in cocaine by transportation and possession; however, Heien preserved his right to seek review of the denial of his motion to suppress on appeal. Id. The subsequent appeal resulted in the Court of Appeals of North Carolina reversing Heien’s conviction, finding that the traffic stop did not arise out of reasonable suspicion. Id. Upon certiorari review, the North Carolina Supreme Court reversed the appellate court’s decision and remanded the case for further judgment. Id. On remand, the appellate court addressed Heien’s other challenges to the initial search that led to his conviction. Id. The following represents the appellate court’s analysis for its decision on remand. Id.

 

ANALYSIS

Length of the Stop

Heien first argued that the traffic stop was unduly prolonged because the continuation of the investigation after Sergeant Darisse wrote the warning ticket. Heien argued that the extended investigation after the ticket was written and given to Vasquez was not based on a reasonable, articulable suspicion that criminal activity had been or was being committed. The Court explained that the Fourth Amendment to the United States Constitution as well as Article I, Section 20 of the North Carolina Constitution guarantee the right of people to be secure in their person and property and free from unreasonable seizures. A traffic stop is permitted if the officer has a “reasonable articulable suspicion” that there is criminal activity or when a motorist commits a violation in the presence of the officer. Under such circumstances, the temporary detention of a motorist during a traffic stop is recognized as a permissible seizure. Roadside questioning under such circumstances also does not trigger the need for Miranda warnings. The Court further cited to case law that supports the proposition that even after reasonable, articulable suspicion for the stop exists, the officer must have reasonable and articulable suspicion in order to justify further delay. Moreover, the Court cited case law that after documentation has been returned to its owners, as long as the individual is aware that they are free to leave, the officer may continue to engage in “non-coercive” conversation and may ask questions or request consent to a search.

The Court held that under the present circumstances, the encounter was not unduly delayed because the trial court found that the tone of Sergeant Darisse and Officer Ward was conversational and non-confrontational and both Heien and Vasquez were unrestrained during the encounter. In addition, the Court held that Heien was aware that the initial purpose for the stop had concluded and further conversation was consensual. The Court also went on to state that the total time between Sergeant Darisse initiating the stop and requesting a search of the vehicle was less than thirteen minutes, which cannot reasonably be deemed as unduly delay.

Scope of the Search

Heien also argued that the scope of the search was unconstitutional. Heien asserted that the officers should have informed him that they were searching for narcotics so that he could have issued a “limiting instruction.” The Court found that argument to be unpersuasive because there is no requirement for an officer to explicitly inform a defendant that he has a right to refuse a search, nor is there a requirement for an officer to inform a defendant of what he is searching for. Furthermore, the Court held that any reasonable person would understand that Sergeant Darisse was searching for weapons, cash, or contraband. The Court held that the defendant’s wish to limit the search is irrelevant.

CONCLUSION

The Court ultimately concluded that the officers, while on routine traffic patrol, properly stopped Vasquez and Heien. In addition, the Court concluded that a reasonable person would understand that he was free to leave or refuse consent to a search. Thus, the Court upheld the trial court’s original ruling that the search was consensual and Heien’s motion to suppress should be denied and his conviction upheld.

 

Garcia v. Montgomery County Maryland


We are pleased to announce that our first blog submission of the new academic year is here!  The below is an engaging submission about police misconduct.

Special thanks for this submission goes to Nathanael Archuleta, one of our staff editors.  As always, CLR greatly appreciates the hard work of our editors and their submissions.

Garcia v. Montgomery County, Md.

FACTS

In 2011, photojournalist Mannie Garcia witnessed an excessive force arrest by two officers and began photographing the scene. Mr. Garcia did not interfere with police activity and even identified himself as a member of the press to one of the on scene officers.  After Mr. Garcia identified himself and his belongings, Officer Malouf arrested Mr. Garcia and placed him in a chokehold, forcibly dragging him along the ground to the police cruiser. Officer Malouf handcuffed Mr. Garcia, confiscated his camera, and kicked Mr. Garcia to the ground.  Officer Malouf also threatened Mr. Garcia’s wife with arrest if she approached.  After his arrest, Officer Malouf failed to inform Mr. Garcia of his Miranda rights or his charged offense.  Further, Officer Malouf confiscated physical evidence of his abuse and booked Mr. Garcia for disorderly conduct. When the police released Mr. Garcia from booking, he did not receive his video card back.  At his subsequent trial, a jury acquitted Mr. Garcia of the disorderly conduct charge.

After being acquitted, Mr. Garcia initiated a civil suit against the police department and city alleging that Officer Malouf fabricated the disorderly conduct charge and that the officers onsite failed to follow police policy on media relations.  Mr. Garcia’s complaint sought relief under 42 U.S.C. § 1983 for violations of his First and Fourth Amendment Rights.

ANALYSIS (other state law claims in the opinion have been omitted from this analysis)

Under 42 U.S.C. § 1983, liability exists for “every person” who under the color of law, deprives an individual of any rights privileges or immunities secured by the Constitution.  For an individual to be liable under § 1983, he/she must be affirmatively shown to have been an official acting under the color of law and acted personally in the deprivation of the plaintiff’s rights.  Here, Officer Malouf, Officer Baxter, and Lieutenant Sheller were acting under the color of law during all relevant times.  Assuming this threshold issue, the courts analysis shifted to the individual liability of each officer.

The court denied the defendants’ preliminary motion to dismiss as to the merits of Mr. Garcia’s First Amendment claims against Officer Malouf and Officer Baxter and Mr. Garcia’s Fourth Amendment claim against Officer Malouf. The court reasoned that citizens have a right to film government officials including law enforcement in the discharge of their duties.  Accordingly, the court found that gathering information about government officials in a form that is readily disseminated to others serves a cardinal First Amendment interest of protecting free discussion of governmental affairs.  The court agreed with Mr. Garcia’s allegations with regard to the peaceful documentation of   the officers’ actions in a public place and found that Mr. Garcia conducted himself in a manner and at a distance that did not interfere with the officer’s arrest.  As he was photographing, Officer Baxter flashed Mr. Garcia with a spotlight and Mr. Garcia moved farther away.  Mr. Garcia proceeded to identify himself as a member of the media, after which Officer Malouf arrested him and seized his property without good cause.  Officer Malouf arrest and seizure of Mr. Garcia was therefore without probable cause under the Fourth Amendment because Mr. Garcia’s actions constituted a constitutionally protected speech.

The court granted the defendant’s motion to dismiss as to Mr. Garcia’s Fourth Amendment claim against Officer Baxter because Mr. Garcia failed to allege sufficient facts that officer Baxter was involved in his arrest or seizure.  The court made clear that presence alone is not sufficient to support a finding that Officer Baxter violated Mr. Garcia’s Fourth Amendment rights when Officer Malouf arrested and seized Mr. Garcia.

The court granted the defendant’s motion to dismiss for all claims against Lieutenant Sheeler because Lieutenant Sheeler was not present during the alleged violations.  Since Mr. Garcia did not allege any claim involving patterns of abuse by the internal affairs department, the court did not consider any other wrongdoing by Lieutenant Sheeler.

With respect to liability under an “official capacity” theory, the court first focused on Mr. Garcia’s complaint against Montgomery County.  Per § 1983, liability attaches only where a municipality itself causes the constitutional violation at issue.  Under this theory, a valid claim arises only where the constitutionally offensive acts of city employees are taken in furtherance of some municipal policy or custom.

However, liability is not inferred merely by inaction of the municipality in the face of isolated constitutional deprivations by municipal employees.

Here, the court found that Mr. Garcia complaint had merit because Mr. Garcia properly asserted that Montgomery County was aware of unconstitutional actions by its officers and chose to ignore such behavior.  The court noted that to survive a motion to dismiss, plaintiffs must plead in their complaint facts that rise above a speculative level if assumed true.  Accordingly, the court rejected the defendant’s motion to dismiss involving Montgomery County.

Additionally, the court addressed which officials, if any, could represent Montgomery County in an official capacity.  An official capacity suit is treated as a suit a government entity; however, officers are only liable in their official capacity when the injury was inflicted by a government lawmaker or by those who may fairly be said to represent official policy.

Here, the court denied the motion to dismiss as to Mr. Garcia’s claim against Police Chief Manger in his official capacity because of Mr. Garcia’s stated role of Police Chief Manger in his injury.  According to Mr. Garcia, Chief Manger was responsible in whole or in part for creating, implementing, promulgating, and enforcing the policies, practices, and/or customs within the police department that prevented Mr. Garcia from engaging in lawful journalist conduct.  The court dismissed all claims relating to Officer Malouf, Baxter, and Graves and Lieutenant Sheeler in their official capacity because Mr. Garcia failed to allege that any of these parties had any final policy making authority for Montgomery County.  Undoubtedly, it is a difficult and daunting task to prove the existence of an underlying policy that encouraged the officers’ inappropriate behavior.

Cases such as this case beg the questions whether such actions are appropriate and whether they restrictions to such actions against the police and government should be relaxed or intensified.

 

We want to hear your opinions on this and other issues recently discussed on the blog.

United States v. Graham


Here is another interesting submission from one of our staff editors to engage all in though for this summer.  The below submission discusses historical cellular cite location data and its implications on the Fourth Amendment.

Special thanks for this submission goes to Chelsea Gilbertson, one of our staff editors.  As always, CLR greatly appreciates the hard work of our editors and their submissions.

United States v. Graham

In United States v. Graham, the court decided an issue of first impression regarding whether historical cell site location data violates the right to privacy as protected by the Fourth Amendment of the constitution. 846 F. Supp. 2d 384, 387 (D. Md. 2012).  The defendants in the case were involved in a series of robberies and volunteered their cellular phone numbers subsequent to their arrests.  Id.  at 386.  Under the Stored Communications Act (SCA), 18 U.S.C. §§ 2701, et seq., the government obtained a warrant obligating Sprint/Nextel Inc.  to disclose the locations of the cellular towers associated with the defendants’ cellphone activity. Id.  Through the use of such warrants, the defendants were charged with several criminal counts including conspiracy to commit robbery. Id.  Defendants appealed the admissibility of the evidence collected under Historical Cell Site Location Data. Id.  Defendants made a challenge to the use of historical cell site location data in furtherance of the prosecution’s case against them. Id.

The issuing judges in this case both granted the first warrant under the SCA and the second for the cell site location using the standard under the SCA, “finding that the government ‘offered specific and articulable facts showing that there are reasonable grounds’” that the information they sought was relevant to the on-going investigation. Id. at 386-87.  The defendants did not challenge the constitutionality of the SCA, rather they argue using the lower standard of “specific and articulable,” instead of probable cause violates their Fourth Amendment right to privacy. Id.

First, the prosecution rebutted that the defendants lacked standing.  They argued one of the defendants provided a fictitious name to the cellular provider; hence, he cannot claim an expectation of privacy. Id. at 397.  Moreover, the government argued that the actual party in interest is Sprint/Nextel Inc., as they have possession of the information. Id.

The court applied the third party standard first articulated in the Fourth Circuit in the past. Id. at 400.  The court cited precedent where it had applied the third party doctrine to Internet subscriber information and found there was no reasonable expectation of privacy for those customers and their information. Id at 399.  Accordingly,  customers who voluntarily turn over their information to a third party have no reasonable expectation of privacy. Id at 399-400.

The government’s third argument is that historical cell site location does not require probable cause.  As applied under the CSA, only the lower standard of “specific and articulable facts” is required. Id. at 388.  Defense countered that the information gathered under cell site location data is collected retroactively and over an extended period of time, thereby making the process unconstitutional.  The Court found  issue with aggregation under the mosaic theory of surveillance. Id. at 402.  The Court articulated its concern that by aggregating multiple acts of surveillance, it can render surveillance unconstitutional that was previously, and would otherwise remain, constitutional. Id. at 402-403.

The Court also looked at the theories from other courts, like the Eastern District of New York and the Southern District of Texas, which suggest that “under certain circumstances, applications seeking cell site location data must be granted only after a showing of probable cause. Id. at 388.  Finally, the Court sided with only applying the SCA’s lower standard, regardless of the period of time in question. Id. at 389.

The government argued in the alternative that even if the Court were to find that this use of historical cell site location data collected is unconstitutional, it should not be suppressed because it was collected in good faith.

The court concluded by applying the third party standard and the lower standard of specific and articulable facts to the collection of historical cell site location data., which did not violate the defendants’ Fourth Amendment right to privacy. Id. at 404.

 

We want to hear your opinions on this and other privacy issues recently discussed on the blog.

Riley v. California


Continuing our series of thought-provoking and relevant submissions from staff editors is the below brought to us by Matthew Hamblin.  We greatly appreciate the hard work of our editors and their submissions.  Below is a discussion of the recent case that was heard by the Supreme Court on April 29, 2014, regarding 4th Amendment search and seizure.  We look forward to see the forthcoming Supreme Court opinion on this case.

David Leon Riley v. The State of California

The Fourth Amendment protects citizens from unreasonable searches and seizures made by the government. This requires a warrant supported by probable cause unless there are exigent circumstances that justify a warrantless search. During a lawful arrest, a police officer may conduct a lawful warrantless search incident to that arrest to protect the officer or to prevent the destruction of incriminating evidence. Items within direct control or immediately associated with the defendant’s person may be search at the time of the arrest. Personal property immediately associated with the defendant may be searched fully in an inventory search or booking search. Mr. Riley was lawfully arrested with his digital smartphone in his hand. There was a cursory search on site and an invasive search later at the station.  Does the station search comport with the Fourth Amendment because Riley’s smartphone immediately associated with his person?

In this case, the Supreme Court will approach the issue of whether a digital smart phone is a within the “direct control” standard illustrated in U.S. v. Chadwick or is under the “immediately associated with defendant’s person” standard illustrated in US v. Edwards when seized in a warrantless search.  Is a smartphone’s digital storage similar to a footlocker found in a car, or is it similar to clothing or a wallet found on an arrestee?

The California Supreme Court held that Riley’s phone was “immediately associated with the defendant’s person.” The Court applied reasoning from People v. Diaz, in which the court said that a cell phone was personal property at the time of the arrest and is therefore subject to a warrantless search at the time of his lawful arrest and during the administrative processing at the station. The court said that, “a delayed search of an item immediately associated with the arrestee’s person may be justified as incident to a lawful custodial arrest without consideration as to whether an exigency for the search exists.” People v. Riley, Cal. App. 4th Dist. (2013); citing People v. Diaz, (2011) 51 Cal.4th 84. Petitioner Riley requested Certiorari with the Supreme Court, claiming that the phone was not immediately associated with his person and the subsequent search of the phone’s digital contents was too remote in time and place from his arrest to comport with the Fourth Amendment.

Facts

After an arrest arising out of a “dribe-by” shooting, police observed Lincoln Park gang indicia consistent with membership. An officer made a cursory search of Riley’s smartphone at that time. The officer noticed that each entry was noted with a “ck.” Typically, this nomenclature is used to signify the user as a “Crip Killer.”

A detective later fully searched the phone at the police station two hours later. He was aware that it was common practice for gang members to take videos or pictures of themselves with firearms. The phone’s digital contents provided more than pictures of firearms. The police found video clips of gang initiation with Riley’s car visible in the background. They also uncovered phone records showing that the phone was at the location of the “drive-by” and the location where Riley’s vehicle had been found.

Riley was charged with several serious offenses and later moved to suppress the  evidence from the phone because the full search of the phone was made too “remote in time and place from the arrest.”

Analysis

The Fourth Amendment prohibits warrantless searches incident to an arrest that are “too remote in time and place” of items merely within “the arrestee’s immediate control.” United States v. Chadwick, 433 U.S. 1. However, a search may be remote in time and place of an item “of the personal property immediately associated with the person of the arrestee.” United States v. Edwards, 415 U.S. 800. An officer in a search incident to a lawful arrest may “conduct a full search of the person [of the arrestee].” United States v. Robinson, 414 U.S. 218.  However, the search incident to an arrest exception must be “reasonably limited” to protect police from hidden weapons and to “prevent the destruction of evidence” United States v. Chimel, 392 U.S. 752, 764 (1969).

This approach is justified in Maryland v. King.  There, the Court explained that that government has an important interest in the warrantless searches of persons arrested for serious crimes. Maryland v. King, 133 S.Ct. 1958 (2013).  Once arrested the arrestee has a diminished expectation of privacy in objects found on his corporeal person such as his DNA for testing. Id.

In Chadwick, the Courtinvalidated a search of a locked 200-pound footlocker an hour and a half after its seizure incident to the arrest. United States v. Chadwick, 433 U.S. 1. There, the Court said that while the locker could have been searched at the time of the arrest, an hour and a half was too far removed from the time and place of the arrest. Id. The Court distinguished the footlocker from the person of the arrestee holding that it was merely in the arrestee’s direct control and not directly associated with his person. Id. The California Supreme Court in People v. Diaz, held that the Fourth Amendment allows officers to search the entire smartphone’s digital contents since the phone is personal property immediately associated with the arrestee. People v. Diaz, 244 P.3d 501, 510 (Cal. 2011).

However, The First Circuit court in United States v. Wurie held that police officers are forbidden from searching the digital contents of a cell phone incident to an arrest without a warrant. United States v. Wurie, ­_ F.3d __, 2012 WL 2129119, at *11 (1st Cir. May 17, 2013). These courts rely on the Chadwick rational and hold that the information held on a smartphone is not similar to information held in a physical closed container found on the person during a lawful arrest.

On one hand, Riley argues that the Edwards analogy does not apply. Indeed, a smartphone has the capacity to store an entire warehouse worth of private information similar to a diary or a computer. This amount of information goes beyond what a person could carry on his person. The government may have access to all of a person’s contacts, years of past texts, email correspondence and calendared appointments if all of the information within a smartphone may be seized. This would include photographs, personal videos, and other information that might be held on a computer such as medical records and banking activity accessed by the internet. Thus, it cannot be said that all of the content’s on a person’s phone can be deemed “immediately associated” with the person carrying the phone. The seizure of this amount of information would be unreasonable invasion of privacy per the Fourth Amendment.

A full search of a smartphone’s content would be equivalent to a general warrant because it would be indistinguishable from searching an entire warehouse or home full of information intended to be kept private by the owner.  It would be the modern day equivalent of a general search. Should the police have that level of access to a person’s life without a specific legal warrant detailing what incriminating evidence the police are seeking?

Further still, the nature of the digital contents of a smart phone diminish the government’s justification found in Chimel in conducting a search incident to an arrest. Further still, there is not inventory search justification. Unlike tangible items that may go missing when containers and vehicles are impounded, the digital content’s on a phone are unlikely to go missing. Unlike tangible weapons that could harm an arresting officer or contraband that could be destroyed before a search, digital items will remain on the phone or in the provider’s servers. Either of which could be searched with a valid legal warrant later.

The search of a smartphone may not further the government interests that justify a search incident to an arrest and impinges upon personal privacy because of the sheer amount of information that can be accessed by the smartphone. That amount of information would not comport with the Framer’s original intent to prohibit general warrants.

On the other hand, the State argues that the digital contents of the phone are no different from physical documents found in a container associated with a person at the time of the arrest.

A cell phone is personal property. As the California Supreme Court stated, personal property found on a person at the time of his arrest may be subject to a warrantless search. Since the phone was in Riley pocket at the time of his arrest it can be considered “immediately associated with his person.” Like the clothing taken form the defendant in Edwards, Riley’s cell phone was an item of personal property on his person at the time of his lawful arrest.

Furthermore, a cell phone can readily identify an arrestee as easily as the DNA taken from the defendant in King.  There is no requirement that information gained in a search incident from an arrest be simply used as identification. Information gained by analyzing swabbed DNA may provide evidence of drug use or any number of things. Information contained in a smartphone may be used for identification and yet still be used by the prosecution since that data was seized in the arrest.

Conclusion

 The Court’s opinion will turn on whether the digital information contained in a smartphone is to be considered “within the direct control” of an arrestee or whether that information was “immediately associated” with the person of the arrestee. This of course will turn on how to court views a smartphone. The phone itself is personal property. However, the data found within that phone can lead to a treasure trove of information that a defendant has manifested an intent for it to remain private. Therefore, the phone itself may be view as “immediately associated” with Riley. On the other hand, the data within may be considered within “the direct control” of Riley.

Overall, how data is legally treated is a very ripe issue. Smartphones have become pervasive through our society. The personal data stored on these devices and servers in which those devises have access is immense. Government agencies from the local police to the NSA use them on a daily basis. The trend has been to let the government have more access to this information for effective surveillance and police work. How the Court decides this case will go to showing the extent of that continuing trend.

 

Cellular Location Tracing and the 4th Amendment – Staff Editor Submission


The CLR opened up the floor to our Staff Editors for insightful and engaging submissions for the blog.  Several editors stepped up to the task and we greatly appreciate their hard work and submissions.  Stay tuned for more great blog submissions!

The first of what trust will be a very compelling series of submissions, was written by Michael LaGarde.  Below is a discussion of the recent case decided in Florida that discusses the 4th Amendment implications of obtaining individual’s locations using cellular phone tracing:

Tracey v. State  — 69 So.3d 992 (2011).

Based on a tip, law enforcement requested to trace incoming and outgoing calls for a cell phone belonging to Shawn Tracey, which he had registered under a false name. The court went beyond the request and also allowed tracking of the phone’s Cell Site Location Information. Tracey was later convicted of possession of more than 400 grams of cocaine as well as other charges. Tracey appealed, claiming the trial court erred in denying his motion to suppress evidence derived from real-time or prospective CSLI under the Fourth Amendment. On appeal, the court upheld his conviction finding there was no Fourth Amendment violation. The Supreme Court of Florida granted review on January 28, 2013 and the decision is forthcoming.

Issue: Does the use of real time CSLI constitute a search under the Fourth Amendment?

A) Is there an expectation of privacy on public roads where Tracey was tracked?

The Supreme Court has held that there is no Fourth Amendment violation in such circumstances because the electronic tracking has “revealed no information that could not have been obtained through visual surveillance” United States v. Karo, 468 U.S. 705, 707(1984) (explaining United States v. Knotts, 460 U.S. 276 (1983)).

Since the appellate court’s decision, the Supreme Court has called into question the exact scope of the ruling in Knotts. In United States v. Jones, U.S., 132 S.Ct. 945 (2012) the Supreme Court found that installing a GPS device on a car constituted a search under the Fourth Amendment. While the majority relied on an analysis of the physical trespass in installing the GPS, two concurring opinions went further in analyzing reasonable expectation of privacy in the context of modern electronic surveillance. Here, Tracey argues that the concurring opinions joined by five justices support the proposition that the appellate court applied too restrictive an interpretation of the Fourth Amendment. The Government argues that the surveillance in Jones is distinguishable because law enforcement physically installed a GPS device for weeks, whereas no such physical intrusions occurred in Tracy’s case.

B) Is there a legitimate expectation of privacy for CSLI?

Tracey’s argument relies on the Fourth Amendment’s requirement to show probable cause to use other forms of electronic tracking. Most individuals take their cell phones with them everywhere, meaning CSLI can reveal sensitive information such as mental health treatment, sexual encounters, religious observance, political activity and more. Could the mere use of cell phones oblige individuals to give up their expectation of privacy to all of this sensitive information?

The Government’s argument points out that there is no legitimate expectation of privacy when someone speaks or shares with a third party over the phone. Is the fact that the cellular providers already track the call information to be used in billing enough to eliminate the expectation of privacy? Perhaps the Court should find the opposite, basing its decision on the government’s position that Tracey was not tracked, but was triangulated using the standard cell tower technology essential to the operation of cellular phones – something that inherently carries no expectation of privacy.

Likely Outcome and Further Questions:

As suggested by five U.S. Supreme Court justices, the sheer volume of private information available to law enforcement through CSLI seems to merit strict restraints as well as a reassessment of Four Amendment precedent. While it is possible the case will be decided on narrower grounds due to procedural or statutory considerations, the Supreme Court of Florida is unlikely to actually uphold the use of CSLI in this case.

Important questions that may or may not be addressed by the impending decision in this case include:

  • Is there a legally significant distinction between prospective CSLI (specifically real-time) and historical CSLI for Fourth Amendment purposes?
  • Does providing a false identity when purchasing a phone really imply no legal expectation of privacy?
  • Does the Knotts precedent regarding the Fourth Amendment on public roads still apply where there has been no trespass AND no significant accumulation of information?
    • E.g., where CSLI is used to track a suspect in a car over a short period of time?