PATRICK'S BLOG

I will blog periodically about current cases that pertain to my areas of expertise.


I have been lecturing at Marino Legal CLE for several years.  We have been tracking the Supreme Court's analysis of privacy rights in the electronic age.  Specifically, I have been highlighting the Government's use of Judicial Orders rather than Warrants based upon Probable Cause to obtain historical, real-time and prospective cell site information on an individual. A recent Circuit Court Split has created the opportunity for SCOTUS to now resolve the question which we have been batting about. 

The 11th Circuit reviewed a case where historical cell site information linked the defendant to a string of Hobbs Act robberies. The Court concluded that the third-party doctrine, first discussed in Miller in 1976 "plainly controls the disposition of this case".
The flaw in this analysis resides in the presumption that citizens are aware of their privacy interests and are willingly forfeiting those privacy rights when they sign a contract with their cell phone service provider.

The 4th Circuit, faced with a similar factual scenario, came to an opposite conclusion.  "Taken together, Karo, Kyllo  and the views expressed in Riley and the Jones concurrences support  our conclusion that the government invades a reasonable expectation of privacy when it relies upon technology not in general use to discover the movements of an individual  over an extended period of time.  Cell phone tracking through inspection of CSLI is one such technology."

I have predicted that the Supreme Court will side with the 4th Circuit.  The 4th Circuit decision rests upon the analysis conducted by the Supreme Court as it has recently grappled with the particular problem technology presents to Fourth Amendment analysis.  The 11th Circuit on the other hand goes back to 1976 to support its holding.

Stay tuned.  I will report back when The Supreme Court agrees to resolve the split.

Here is an outline of the cases I discuss to build a framework for the electronic age discussion.


BACKGROUND CASES

A.      MAPP V. OHIO, 81 S.CT 1684 , 1961 WARRANT NECESSARY TO ENTER HOUSE  - TRESPASS-

B.      KATZ V. U.S., 88 S.CT.507, 1967 – NO TRESPASS - PROTECTS PEOPLE NOT PLACES – PRIVACY IN ASSOCIATION PROTECTION EXTENDED TO OFFICE, HOTEL, PHONE BOOTH.  HARLAN’S CONCURRENCE BECOMES TOUCHSTONE FOR FOURTH AMENDMENT “REASONABLE EXPECTATION OF PRIVACY” FORESHADOWING… THE MAJORITY SAYS WE CANNOT IGNORE THE ROLE THE PUBLIC TELEPHONE HAS COME TO PLAY IN OUR SOCIETY.

C.       UNITED STATES V. MILLER, 96 S. CT. 1619 (1976) –BANKING – THIRD PARTY DOCTRINE INTRODUCED

D.      SMITH V. MARYLAND, 99 S. CT. 2527 (1979)

E.       SOUTH DAKOTA V. OPPERMAN 96 S.CT 3092, 1976 - FIRST EXAMPLE OF TORTURING LOGIC.  CAR IS IMPOUNDED DUE TO PARKING TICKETS, HOW CAN MOBILITY/EXIGENCY BE FOUNDATION OF LOGIC.  CHANGE TO , USING HARLAN’S WORDS, WHAT IS EXPECTATION OF PRIVACY, IN AUTO, AND THEN WE GET “DIMINISHED EXPECTATION OF PRIVACY”



F.       U.S. V. KNOTTS 103 S.CT.1081 , 1983 FACTS – INTERDICTED CHLOROFORM, SELLER PLACES BEEPER INSIDE JAR –POLICE FOLLOW TO SEVERAL LOCATIONS EVENTUALLY TO A CABIN IN WISCONSIN.  COURT FINDS THAT NO INFORMATION OBTAINED ELECTRONICALLY THAT COULD NOT BE OBTAINED BY VISUAL SURVEILLANCE.  COURT FINDS NO TRESPASS, NO SEIZURE, NO SEARCH, AND NO EXPECTATION OF PRIVACY IN MOVEMENT FROM ONE PLACE TO ANOTHER.   THROW IN ANALYSIS OF BELTON TO GANT – “WOULD UNTETHER THE RULE FROM THE JUSTIFICATION UNDERLYING THE CHIMEL CASE”

G.     U.S. V. KARO 104 S.CT. 3296, 1984 – FACTS LIKE KNOTTS, BUT HERE BUGGED CONTAINER TRAVELLED TO LOCATIONS OUTSIDE THE VIEW OF THE POLICE.  NO SEARCH, NO SEIZURE, DECISION REFERS TO A “TECHNICAL TRESPASS” BUT I AM NOT SURE ABOUT THAT LANGUAGE.  RESOLVED THAT THE PLACEMENT OF BUG IS NOT A PROBLEM, BUT MONITORING A BEEPER INSIDE A PRIVATE RESIDENCE NOT OPEN TO VISUAL SURVEILLANCE WOULD VIOLATE EXPECTATION OF PRIVACY.

H.       KYLLO V. U.S. 121 S.CT. 2038, 2001. TECHNOLOGY SHRINKING REALM OF PRIVACY. 4 STEP ANALYSIS.

I.        UNITED STATES V. JONES, 132 S. CT. 945, 2012 FACTS – NO WARRANT – 4 WEEKS OF SURVEILLANCE – 2,000 PAGES OF DATA. COURT BELOW STATES, “PEOPLE TRAVELLING THE PUBLIC HIGHWAYS HAVE NO EXPECTATION OF PRIVACY” REVISIT DRAGNET QUOTE FROM KNOTTS.

SCALIA USES A CASE FROM 1765 TO DISCUSS AND DECIDES RETROFITS THE DECISION AS A “TRESPASS” VIOLATION.

LANGUAGE FROM SOTOMAYER VERY BENEFICIAL.

J.        FLORIDA V. JARDINES, 133 S. CT. 1409, 2013. DOG AS TECHNOLOGY KAGAN CONCURRENCE

K.      RILEY V. CALIFORNIA, 134 S. CT. 2473, (2014)  TELEPHONE AS SO MUCH MORE


N.     USA V. DAVIS -11TH CIRCUIT,  MAY, 2015 SUPPRESSED ORIGINALLY, EN BANC REVERSAL

O.     USA V. GRAHAM – 4TH CIRCUIT AUGUST, 2015

Suggested Reading

       1.       State v. Earls, 214 NJ 564

2.       In the Matter of an Application…, 515 F. Supp. 2D 325

3.       In the Matter of an Application… 809 F. Supp. 2D 113









                  





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Privacy Rights While Riding



January    25, 2013
PEOPLE V. GARCIA 2012 Slip Op 08670 (12-18-12)
                  The New York Court of Appeals has rendered a decision which explicitly protects the privacy interests of citizens who are travelling in an automobile.   Citing the analysis found in the seminal cases, which address warrantless police/citizen street encounters (People v. DeBour, 40 NY 2d 210 (1976), People v. Hollman, 79 NY 2d 181 (1992)), the Court concluded, “the standards of DeBour and Hollman govern police-citizen encounters during lawful traffic stops”.
In Garcia, officers observed a broken taillight on the car which Mr. Garcia was driving.  As they approached the properly stopped vehicle, officers observed that   three male passengers in the rear seat “stiffened”, “acted nervous” and “made furtive movements”.  Upon reaching the driver the officers requested and the driver promptly produced a valid license and registration. At that point it would have been constitutionally permissible for the officers to order the occupants to step out of the vehicle (People v. Robinson, 74 NY 2d 773 (1989), Pennsylvania v. Mimms, 434 U.S. 106 (1977). Instead, Officer Cleri inquired if anyone in the car was in possession of a weapon.  When a passenger in the rear seat admitted to holding a knife, all passengers were removed from the car and searched.  Supreme Court denied Garcia’s motion to suppress, the Appellate Division First Department reversed, and the Court of Appeals took this opportunity to address the specific question of whether an officer’s inquiry of an inhabitant of a vehicle is subject to the rule set down in DeBour and Hollman.
                  Mr. DeBour was walking on the streets of Brooklyn just after midnight when two officers on patrol saw him.  DeBour crossed the street moving away from the police and this triggered suspicion.  When he was stopped DeBour was asked for identification (which he did not produce) and he was told to unzip his jacket.  When he complied, the butt of a gun was seen protruding from his waistline and he was arrested.  It was in this case that the Court of Appeals established its four level framework whereby an officer’s warrantless encounter will be analyzed to determine if the intrusion is consistent with an attending level of suspicion.  
                  Police Officers are always permitted  to approach citizens on the street  to request information not necessarily indicative of criminality.  In this least intrusive encounter, police can ask  for identification and are generally permitted to  attempt to gain information consistent with their duties as public safety officials. (i.e. looking for lost children or  a missing pet. (Level 1)  A level two intrusion, a common law right to inquire, permits law enforcement to momentarily detain an individual to ask questions which are indicative that the citizen may be involved in some wrongdoing.  In order for this type of inquiry to be constitutionally proper, the officer must be able to articulate objective facts, which would lead a judge to believe that criminal activity is afoot.  When an officer has reasonable cause to believe that an individual has committed a crime, he is permitted to temporarily detain that person.  To insure officer safety, a pat down is also permitted. (Level 3)  If there is probable cause to believe that an individual has committed a crime, seizure, in the form of an arrest is permitted.  Incident to a lawful arrest an individual and any containers in his immediate grabbable area are subject to a full search.
                  But how does this analysis apply to an individual who is not stopped on the street, but is approached by law enforcement agents while seated in a vehicle?  Hollman (and its companion case People v. Saunders), examined the propriety of an officer’s inquiry of passengers seated on a bus parked at the Port Authority.  The court distinguished between questions which were not indicative of criminality (“Did you pack any bags?”) and those, which were clearly more investigative in nature. (“Can I search your bag?”)  In reaffirming the framework established in DeBour, the Court of Appeals concluded, “The defendant's behavior, while it may have provided the officer with adequate basis for an approach  for a few general, nonaccusatory questions, was certainly not so suspicious as to warrant the further intrusion of a request to rummage through the defendant's luggage.” People v. Hollman, 79 N.Y.2d 181, 194, 590 N.E.2d 204, 211 (1992)
                  In Garcia, the State argued that the officer safety issue addressed in Robinsonsupported the proposition that an officer should be permitted to ask accusatory, intrusive question even when no evidence of criminality is present.  The Court disagreed. Citing an interest in promoting an even handed application of the DeBour framework to both street and vehicle encounters the court concluded, “whether the individual questioned is a pedestrian or an occupant of a vehicle, a police officer who asks a private citizen if he or she is in possession of a weapon must have a founded suspicion that criminality is afoot.”

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