Presentation Transcript

1. When the 4th Amendment and technology collide Joy Radice UT College of Law 1505 W. Cumberland Ave. Knoxville, TN 37996 Phone: (865) 974-6773 Fax: (865) 974-6782 E-mail: jradice@utk.edu
2. 4th Amendment and technology What will we cover? DNA Collection Recording DNA in CODIS Electronic Surveillance: Slap on GPS – adding a GPS monitor to a car Cell Phone Site Location – where we are when we use our phones Searching technology that we carry Incident to arrest At the border
3. What does the Constitution Protect? Cell Phone Searches DNA Collection Cell Site Location GPS Pen Registers
4. Where does the Protection Come From? Constitution Statutes
5. Pen Trackers/ Trap and Trace Smith v. Maryland, 422 US 735 (1979) Can record telephone numbers – no judicial review necessary. No 4th Amendment Protection Congressional response: Need court to say that the Information will be RELEVANT So not ___________________
6. DNA Collection Maryland v. King133 S.Ct. 1958 (2013) King arrested in the Spring of 2009 for “menacing a group of people with a shotgun.” DNA taken as part of booking procedure July 2009 – DNA uploaded in Maryland DNA database Three weeks later: a match to an unsolved rape case
7. Maryland DNA Collection Act Permits DNA collection from individuals charged with a crime of violence or an attempt to commit one; or burglary or attempt to commit burglary Only after probable cause hearing DNA sample destroyed if no p.c. or case does not result in a conviction Only for identification (no familial matches)
8. Government Interests Identification - Modern-day fingerprints Safety of personnel and detainees Guaranteeing that the accused available for trial Exoneration Act guards against further invasion
9. Dissent(Scalia, Ginsburg, Sotomayor & Kagan) At any rate, all this discussion is beside the point. No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest).
10. Today's judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver's license, or attends a public school. Perhaps the construction of such a genetic pan- opticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.
11. GPS Trackers US v. Jones Attaching a GPS device to a vehicle and then using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment. Tied to common-law trespass
12. GPS Trackers Scalia’s opinion: shifts conversation away from Katz’ reasonable expectation of privacy test: Katz – public phone wiretap not allowed without a warrant. 4thAmendment protects persons and their private conversations The 4th Amendment protects people, not places Concerned with government trespass on persons, houses, papers and effects “the government physically occupied private property for the purpose of obtaining information.”
13. 6th Circuit Case:Good Faith Exception Davis v. United States (2011) expanded the application of the good-faith exception to the Fourth Amendment exclusionary rule. The Court held that the exclusionary rule does not apply to Fourth Amendment violations when officers act in objectively reasonable reliance on binding precedent that is later overturned. U.S. v. Fisher (March 7, 2014) – We determine that the police had an objectively reasonable good-faith belief that their conduct was lawful and was sanctioned by then binding appellate precedent, and thus, the exclusionary rule does not apply.
14. Cell Phone Site Location
15. Cell Phone Site Location Collect real-time and historical data Real-time – every 2 seconds Call phone company personnel Internet portal Historical Data Only when call is made and received How long do companies hold the data How law enforcement do this: Ask for data Ex parte order – specific and articulable facts that the phone connects to an investigation
16. Cell Phone Site Location Business record No 4th Amendment protection Not government doing it Look for a statutory protection Other phone areas Photos – geo-tag Location services – yelp What to do: Look at order or warrant Look at user agreement Was there a legitimate business need? Discovery letter to government - general Go to the carrier with a 17C order - specific Co-conspirator/co-defendant witnesses Client
17. 4th Amendment Primer for Searches Incident to arrest Chimel v. California, 395 U.S. 752 (1969) U.S. v. Robinson, 414 U.S. 218 (1973) New York v. Belton, 453 U.S. 454 (1981) Thornton v. U.S., 541 U.S. 615 (2004) Arizona v. Gant, 556 U.S. 332 (2009)
18. 4th Amendment and Searches Incident to arrest Chimel v. California, 395 U.S. 752 (1969) – allow for search incident to arrest to prevent the destruction of evidence or protect officer safety. U.S. v. Robinson, 414 U.S. 218 (1973) – Bright line rule: Police can open closed containers when searching incident to arrest without suspicion that the contents of the container could be illegal. New York v. Belton, 453 U.S. 454 (1981) – Bright line rule: Police, folling a lawful arrest can search an entire car, including the passenger compartment, and any object in the car. Thornton v. U.S., 541 U.S. 615 (2004) – Police allowed a search incident to arrest of a vehicle that the arrestee recently occupied. STRETCHED DOCTRINE BEYOND ITS BREAKING POINT – Scalia in concurrence
19. Arizona v. Gant, 556 U.S. 332 (2009) – “reasonable to believe evidence relative to the crime of arrest might be found in the vehicle” or arrestee is unsecure and safety is concerned. Narrowing the New York v. Belton rule which appeared to authorize the searching of not just the passenger compartment but everything within that space “when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals.” Indeed the character of that threat implicates the central concern underlying the 4th Amendment – the concern about giving police officers the unbridled discretion to rummage at will among a person’s private effects. Illinios v. MacArthur, 531 U.S. 326 (2001) – warrantless seizure of an individual to prevent him from entering his home destroying evidence while the police waited for a magistrate to issue a warrant.
20. Cell PhoneS incident to arrest Should police be able to search? Why or why not?
21. Cell Phone Cases to Be decided U.S. v. Wurie Observed drug sale Flip Phone (2 phones taken) Call log U.S. v. Riley Expired tags Smartphone Pictures showed evidence of involvement in a shooting Arguments on 4/29
22. What if the phone is password protected? Can the police search without warrant? What about fingerprint protection?
23. The Border Search Exception
24. The Border Search Exception Warrantless searches are permissible for a person leaving the country. U.S. v. Ramsey 431 U.S. 606 (1977) What about phones and laptops?
25. The Border Search Exception Different than other containers that you travel with? Should some level of suspicion be required?
26. The Border Search Exception U.S. v. Arnold, 533 F.3d 1003 (9th Cir. 2008). Customs and Border protection and Immigrations and Customs Enforcement released policy statements endorsing the Arnold rule. Directives allow full digital copies and indefinite storage. Between Oct. 2008 and June 2010, the electronic devises of over 6,671 travelers were searched. How far does this go?
27. Extended Border Search Doctrine State v. Cotterman (9th Circuit) U.S. v. Stewart (6th Circuit) on Sept. 3, 2013. Theodore Stewart was entering the United States from Japan, when he ran into Customs and Border Protections (CBP) agents at the Detroit Metropolitan Airport. His "standoffish" and "confrontational" responses to their routine inquiries let them to believe that something was amiss, and led to a search of his belongings and computers. "A routine border search of a laptop computer is not transformed into an 'extended border search' simply because it is transported twenty miles beyond the border and examined within twenty-four hours of the initial seizure.”
28. Not the end of the conversation? USA v. Alvarez(8:13-cr-009) disallowing cell phone records and the suspects’statements.. Result: The Northern District U.S. Attorney's Office dismissed the indictments. At the station, Judge McAvoy said the agents opened the cellphones and extracted telephone numbers and messages. The agentsacted without the women's permission or warrants. "These actions amounted to a search that was not justified by any exigent circumstance and not necessary to protectany officer's safety," the judge wrote.                                                                                 The U.S. Court of Appeals for the Second Circuit has not yet ruled on the question of warrantless searches of cell phones. But he said the court held in United States v. Galpin, 720 F.3d 436 (2013), that the searchof a computer hard drive was "akin to a residence in terms of the scope and quantity of private information it maycontain.”
29. A Possible Amendment to the E-mail Privacy Act Congress is currently considering the E-mail Privacy Act (HR  1852), a bi-partisan bill that would update the ElectronicCommunications Privacy Act (ECPA).   The E-mail Privacy Act (HR 1852) would ensure that allgovernment agencies obtain a warrant before accessing personal and private online communications.  
30. Where to Go for help: Do research! EFF.org Federal Public Defender website Use Experts! Con Law blog Crim Profs blog