The Volokh Conspiracy

I haven’t blogged recently on judicial decisions considering the mosaic theory of the Fourth Amendment. As regular readers will recall, the “mosaic theory” is a term for the idea that long-term monitoring of a suspect can be a Fourth Amendment search even if short-term monitoring is not. Under this approach, which was suggested by the concurring opinions in United States v. Jones, surveillance and analysis of a suspect is outside the Fourth Amendment until it reaches some point when it has gone on for too long, has created a full picture of a person’s life (the mosaic), and therefore becomes a search that must be justified under the Fourth Amendment. I think the mosaic approach is a misstep for reasons I elaborated on in this article. And the handful of lower courts to have considered the theory since Jones mostly have not adopted it, either because they found it unpersuasive, because they distinguished Jones on the facts, or because they avoided the question under the good-faith exception to the exclusionary rule. See, e.g., United States v. Graham, 846 F.Supp.2d 384 (D.Md. 2012).

In the last week, two district courts have divided on the question: United States v. Rigmaiden (D. Ariz. May 8, 2013), and United States v. Powell, — F.Supp.2d –, 2013 WL 1876761 (E.D. Mich May 3, 2013) In this post, I want to discuss the two rulings, and then offer some critical commentary on Powell at the end.

First, today in United States v. Rigmaiden (D. Ariz. May 8, 2013), Judge Campbell held that the third-party doctrine applies to both cell-site information collected over 38 days and websurfing destination IP address information that collected 1.8 million destination IP addresses. Judge Campbell held that the mosaic theory did not apply when the government obtained historical cell-site records of the target’s location over a 38 day period, which it used to find the defendant:

Defendant argues that the government was able to use the cell-site information to effectively track his aircard from June 10 to July 18, 2008, a period of 38 days, and that this “prolonged surveillance” implicated his reasonable expectation of privacy. Doc. 824 at 215-17. Defendant relies on United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), and United States v. Jones, 132 S.Ct. 945 (2012), but those decisions are inapposite. They do not address orders under the SCA, and the Supreme Court in Jones did not adopt the privacy theory advanced by Defendant.

In this case, a government agent, working in his office with the historical cell-site information and using mathematical and triangulation techniques, was able to calculate a general location for Defendant’s aircard during a 38-day period. The calculation narrowed the location of the aircard to one-quarter of a square mile.The Court cannot conclude that such use of cell-site information [over a 38 day period], obtained from a third party under the SCA, is tantamount to attaching a GPS device to a person’s vehicle. Calculations made from the historical cellsite information did not provide minute-by-minute intelligence on Defendant’s precise movements as did the GPS device in Maynard. The calculations merely identified a general area where the aircard was located – and stationary – for 38 days.

Also, in the case of the IP addresses monitored, the volume of surveillance didn’t matter:

Nor did the government violate Defendant’s Fourth Amendment rights by the volume of IP addresses it obtained. Defendant notes that the government obtained 1.8 million IP addresses from Verizon, and argues that the government should have tailored its request more narrowly and obtained only those IP address it had already connected to the tax-refund scheme. Because obtaining IP addresses is akin to obtaining telephone numbers, an act that does not implicate the Fourth Amendment at all, Forrester, 512 F.3d at 510–11, the Court cannot conclude that the government was required to narrowly tailor its request. Moreover,Forrester specifically held that there is “no difference of constitutional magnitude” between obtaining IP addresses and learning the total volume of communications with such addresses, holding that the government’s monitoring of “the total volume of data transmitted to and from [the defendant’s] account” did not violate the Fourth Amendment. Id. at 511. If the government can obtain destination IP addresses and the total volume of such communications without implicating the Fourth Amendment, the Court cannot conclude that the government somehow violated the Fourth Amendment when it obtained 1.8 million IP addresses accessed by Defendant’s computer.

On the other hand, last week Judge Murphy of the United States District Court for the Eastern District of Michigan handed down a decision adopting what amounts to a mosaic approach for cell-phone tracking in United States v. Powell, — F.Supp.2d –, 2013 WL 1876761 (E.D. Mich May 3, 2013). In Powell, eight defendants in a wide-ranging narcotics conspiracy jointly moved to suppress cell-site and GPS information obtained from six cell phones to monitor the location of the conspirators. The FBI had obtained a series of search warrants to obtain the records pursuant to Federal Rules of Criminal Procedure 41. Each of the warrants allowed the government to monitor an individual phone for at least 30 days, and the collection of all the warrants together allowed the agents to monitor the collection of cell phones for about seven months. The monitoring occurred over seven months in 2010, and one warrant in particular revealed very helpful information about the locations of at least one of the conspirators. Fourteen conspirators were charged in the case, and eight defendants moved together to suppress the location monitoring on the ground that the warrants were defective and thus that the fruits of the location monitoring had to be suppressed.

In Judge Murphy’s opinion, he ultimately rules that the good-faith exception to the exclusionary rule applies, so the motion to suppress is denied. But before he gets there, he adopts a few novel holdings about the Fourth Amendment.

First, Judge Murphy rules that a warrant was required to conduct as much monitoring as the government conducted. It’s true that in United States v. Skinner, the Sixth Circuit (binding on Judge Murphy) had said that cell-phone tracking of a suspect was outside the Fourth Amendment. But Skinner involved tracking for only a few days, while all of the monitoring collectively in this case involved tracking of the various suspects for seven months. This was a long enough period that it was highly likely that some of the tracking occurred when suspects were inside their homes: “Given the duration and intensity of the tracking, it cannot be reasonably argued that only public-thoroughfare data was collected. The government certainly collected cell-site data emanating from within the defendants’ homes or from another place in which the defendants had a legitimate expectation of privacy.” That matters because United States v. Karo had held that it was a search to monitor the location of a beeper device from inside a home. Under Karo, “[i]f at any point a tracked cell phone signaled that it was inside a private residence (or other location protected by the Fourth Amendment), the only other way for the government to have obtained that information would be by entry into the protected area, which the government could not do without a warrant.” This was bolstered by Kyllo v. United States, Judge Murphy reasoned, because the government couldn’t know if it was monitoring a suspect’s location inside the home:

In Kyllo, the Court rejected the argument that the government could restrict its thermal searches to non-“intimate” details based on the practical observation that “[n]o police officer would be able to know in advance whether his through-the-wall surveillance picks up ‘intimate’ details-and thus would be unable to know in advance whether it is Constitutional .” Id. at 38 (italics added). The same problem is posed by requests for prospective real-time cellsite location data. The March 11, 2010 warrant authorized the DEA to collect real-time cellsite location data for up to thirty days. Under virtually any circumstance, there was no way the DEA could know in advance whether or not the location data collected during that period would come from within a protected area.

Having distinguished Skinner, Judge Murphy then turned to the concurring opinions in Jones:

The Court’s Fourth Amendment concerns also overlap with those expressed by the D.C. Circuit in Maynard, and in the Jones concurrences. See Maynard, 615 F.3d at 562; Jones, 132 S.Ct. at 963–64 (Alito J., concurring in the judgment); Jones, 132 S.Ct. at 954–57 (Sotomayor, J., concurring). Generally speaking, those opinions express the view that warrantless long-term tracking by electronic means violates an individual’s reasonable expectation of privacy, not just because of the potential for tracking into protected areas, because the information obtained through such means is, in the aggregate, so comprehensive.FN7 See, e.g., Jones, 132 S.Ct. at 964 (“[S]ociety’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.”) (Alito, J., concurring). The Jones majority found the Fourth Amendment implicated on narrower, property-based grounds, and declined to decide whether surveillance of Jones over thirty days by “electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy.” Id. at 954 (“[T]he present case does not require us to answer that question.”). That basis of decision is not available in this case because no device was installed, and yet the privacy concerns implicated by the tracking seem just as profound.

For these reasons, the Court finds that when the government requests authorization to engage in long-term, real-time tracking of an individual’s movements via his or her cell phone, the situation reaches past the law set forth in Skinner, and Fourth Amendment concerns are implicated.

Judge Murphy reconciles his decision with Skinner as follows:

The cell-phone tracking standard is meant to be read in harmony with the Sixth Circuit’s holding in Skinner. Specifically, if the government seeks to track an individual for a short period of time only, with no foreseeable intrusion into protected areas, the probable-cause showing discussed here would not apply and Skinner would plainly govern. If, for example, the tracking was to be done for a limited purpose on public thoroughfares—like in Skinner, with foreknowledge a suspect was taking a two day cross-country trip—the specific Fourth Amendment concerns addressed here would not be raised. But if the tracking the government seeks to undertake is similar to the “intensive 28–day” monitoring the Sixth Circuit itself distinguished, then the more detailed showing required to meet the cell-phone tracking standard should be made

As I have written about the problems I see with the mosaic theory, I was very interested to know what kind of distinction Judge Murphy was drawing between short term and long term monitoring. Which version of the mosaic theory is Judge Murphy adopting? The DC Circuit’s, Alito’s, Sotomayor’s, or something else? How does it apply? How do you group over six phones and monitoring pursuant to a string of different warrants? Who has standing to challenge a mosaic search? Where are the lines? Judge Murphy responds in Footnote 7:

[The mosaic] view has its critics. See, e.g., Orin Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L.Rev. 311 (2012). The present Order does not adopt any of the “mosaic theory” approaches specifically, nor does it purport to address the questions raised in Kerr’s article regarding the implications of the approach. The Court simply notes that the constitutionality of long-term cell-phone tracking was left open in Jones, submits that the privacy issues presented by such tracking merit a doctrinal response, and finds that the facts presented here fall on the wrong side of the constitutional divide.

Judge Murphy next concludes that such monitoring not only requires a warrant, but that it requires a special kind of warrant:

Continue reading ‘District Judges Divide on Long-Term Cell Phone Tracking Under the Fourth Amendment’ »

I recently mentioned my new short essay, Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403 (2013), about how the Supreme Court should resolve the lower court division on the Fourth Amendment rule for searching a cell phone incident to arrest. In light of that, I thought I would flag this morning’s decision by the Florida Supreme Court deepening the lower court division. In the new case, Smallwood v. State, the court ruled that the police can routinely seize a cell phone incident to arrest, but they generally need a warrant to search it absent a demonstrated risk that evidence on the phone could be destroyed after it had been seized. Here are the two key passages from Smallwood:

[W]e . . . conclude that the electronic devices that operate as cell phones of today are materially distinguishable from the static, limited-capacity cigarette packet in Robinson, not only in the ability to hold, import, and export private information, but by the very personal and vast nature of the information that may be stored on them or accessed through the electronic devices. Consistent with this conclusion, we hold that the decision of the United States Supreme Court in Robinson, which governed the search of a static, non-interactive container, cannot be deemed analogous to the search of a modern electronic device cell phone.

. . . .

Gant demonstrates that while the search-incident-to-arrest warrant exception is still clearly valid, once an arrestee is physically separated from an item or thing, and thereby separated from any possible weapon or destructible evidence, the dual rationales for this search exception no longer apply. Applying Supreme Court precedent from Chimel and Gant to the instant case, we conclude that Officer Brown unquestionably was authorized to take physical possession of Smallwood’s electronic device used as a phone as part of the search incident to the arrest because the device was present on Smallwood’s body. See Chimel, 395 U.S. at 762-63. However, once the electronic, computer-like device was removed from Smallwood’s person, there was no possibility that Smallwood could use the device as a weapon, nor could he have destroyed any evidence that may have existed on the phone. Accordingly, neither the officer protection nor the evidence preservation justification for the warrant exception applied.

The Florida Supreme Court has become a regular source of Fourth Amendment cases for the U.S. Supreme Court, as we saw this past Term in Harris and Jardines. I wouldn’t be surprised if this case follows the same path to 1 First Street.

Thanks to reader L. Michael Billmeier Jr. for the tip about today’s decision.

Here’s a fascinating issue that just led to an unusual opinion by Magistrate Judge Stephen Wm. Smith of the Southern District of Texas, who is no stranger to the Volokh Conspiracy for his, um, unusual opinions. The issue: What are the legal standards for the government to search a hacker’s remote computer to determine the hacker’s identity and location? In this case, someone hacked the e-mail account of a victim in Texas and used the e-mail account to access the victim’s bank account. After the unauthorized access to the account was blocked, the hacker set up an e-mail address almost (not not quite) identical to the real e-mail account and tried to wire money to a foreign bank. The location of the hacker is unknown, although there are signs that he is abroad: The most recent IP address resolved to a country in Southeast Asia. In this case, the government applied for a search warrant to remotely access the intruder’s computer and search it for evidence of who the intruder is and where he located.

I. Magistrate Judge Smith’s Denial of the Warrant Application

The application went before Magistrate Judge Smith, who denied the application for a warrant. As his occasional practice, Smith authored a published opinion, forthcoming in the F. Supp.2d., explaining the different reasons why he denied the warrant application. As far as I can tell, he did not ask for briefing on the issue; he just issued the opinion based on his own research. Anyway, here are the three reasons he offers for denying the application:

1) Rule 41 of the Federal Rules of Criminal Procedure generally only authorizes warrants to search property inside the magistrate’s own district. Because the location of the computer that will be searched is unknown, the magistrate does not have sufficient assurance that the warrant will be executed in his own district and therefore that he has authority to issue the warrant.

2) The applicaton does not explain how the government will execute the warrant. Judge Smith notes that executing the warrant requires a two stage search: first, the government will have to first go and find the computer — presumably by sending some sort of virus to the second e-mail account — and second, the government will have to search the computer that is found. Judge Smith concludes that the warrant application fails because it has not specified a sufficiently careful way of conducting the first search sufficient to persuade Judge Smith that the government is really going to search the correct computer and not accidentally interfere with the rights of innocent users. Because the government has not specified the way that it will find the target’s computer, the warrant application is insufficient. (“There may well be sufficient answers to these questions, but the Government’s application does not supply them.”).

3) The warrant application requests permission to monitor the computer for 30 days to monitor some ways in which it is used, including taking photographs of the users to catch them “in the act” of using the machine and therefore identify them. According to Judge Smith, the warrant application is inadequate because this sort of monitoring will amount to video surveillance, and the application does not satisfy the heightened standards for video surveillance adopted under Fifth Circuit precedent.

II. My Analysis

Was Magistrate Judge Smith right or wrong to deny the application? I’m going to focus on the first two arguments, because the third argument (about the heightened standards for video surveillance in the Fifth Circuit) is pretty technical, not specific to the issue of when the government can get a standard to remotely search a computer, and easy for the government to correct. [See the update for an analysis of the third issue.] The first two issues are much more fundamental, so I’ll analyze them in detail. In short, I think Smith’s analysis of these two issues is mistaken. Here’s why.

Issue 1: Extraterritoriality Of Remote Computer Searches

Magistrate Judge Smith’s first argument is that he lacks the authority to issue the warrant because Rule 41 is territorial. Generally speaking, magistrates are only allowed to issue warrants to search property in their own districts. Because the computer isn’t known to be in Smith’s district, he denies the application. I think this is a tricky issue, but that ultimately Smith was wrong to deny the warrant application on this basis.

For starters, Smith is absolutely right about the general principle that he normally only can authorize searches to be executed in his district. But while that’s true, Smith overlooks the really interesting and important issue: If agents in one district install a remote listening device elsewhere, record information remotely, and only review when in the home district, where does the “search” occur? Does the search occur only in the physical place where the computer was located? Or does the search also occur in the home district where the agents first viewed the information? Judge Smith assumes that the search only occurs where the computer is located. Seeing no assurance that the remote computer would be in his district, he denies the application. But I tend to think his assumption is wrong.

Here’s why I think it’s wrong. It often happens that the government makes an electronic copy of information without a person seeing it, such as when agents “image” a hard drive, and only later the agents look through the copy. In those cases, courts always treat looking through the image as a “search” just as they would treat looking through the original. (And correctly so, as I argued in this 2005 article.) As a result, computer searches can occur in two places. If the government searches a home in one district, finds a computer and images it, and then searches the image in another district, then we would say that searches occurred in two districts: First, the district in which the physical search occurred, and second, the district in which the electronic search of the image occurred. So it seems to me that if the computer is located in one place but the agents are in another, the searches will have occurred in both districts, not just one.

This same issue has arisen often in the context of the Wiretap Act. In that setting, most courts have held that the search (in Title III parlance, the “intercept”) occurs in both the district where the call is actually monitored and the district where the agents sit and listen to the call. Because the new decision arose in the Fifth Circuit, it’s worth pointing out the Fifth Circuit precedent, United States v. Denman, 100 F.3d 399 (5th Cir. 1996). In Denman, a judge issued a Title III warrant to intercept communications in its district. The calls were actually intercepted in another district, but the agents listened to the calls in the home district where the warrant was issued. The Fifth Circuit agreed with a Second Circuit precedent that this was fine because the location of a Wiretap Act intercept included the place where the agents listened to the recorded calls:

[I]nterception includes both the location of a tapped telephone and the original listening post, and [] judges in either jurisdiction have authority under Title III to issue wiretap orders. As the Rodriguez court noted, this interpretation aids an important goal of Title III, to protect privacy interests, by enabling one judge to supervise an investigation that spans more than one judicial district.

Now that brings us to a tricky question: If a search occurs in multiple districts, can a single Rule 41 warrant authorize a search in those multiple districts? That’s the rule in the Wiretap Act setting, as seen in Denman. If that same principle applies to Rule 41, then I would think that the application should have been signed and Smith was wrong to deny it on this ground. At the same time, it’s not at all clear that the same “either district suffices” rule applies to Rule 41. I don’t know of any caselaw on the issue. So it may be that Rule 41 has a different rule: Perhaps it only allows the part of the search that is in the home district, and it does not allow the part of the search that is outside the home district.

But even if that is the case, that doesn’t mean that Magistrate Judge Smith was right to deny the application. The reasons why require a bit of underlying Fourth Amendment law to understand. From a territorial perspective, there are three basic “places” that the computer could be located: 1) Inside the home district; 2) In another district; and 3) Outside the territory of the United States. It seems likely that the physical computer that will be searched in this case is overseas; as I mentioned earlier, the last known IP address is traced back to somewhere in Southeast Asia. That’s important because existing caselaw indicates that the warrant requirement does not apply outside the United States. See In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 157 (2d Cir. 2008). This makes sense of the fact that Rule 41 does not authorize searches outside the United States (with a few narrow exceptions): The government doesn’t need warrants to search outside the United States, so there is no need to ask a magistrate judge to conduct searches there. So if the computer is located outside the United States, the government does not need a warrant to conduct the search of the physical computer: It only needs a warrant to conduct the search inside the United States after the information is retrieved. And even that generously presupposes that the person outside the United States has sufficient contacts to the United States to have Fourth Amendment rights in the first place. It is overwhelmingly likely that a person outside the U.S. has no Fourth Amendment rights in the first place under United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).

In short, it is likely that the only part of the “search” that requires a warrant is the part that will occur in Smith’s home district. Given that, I would think that the proper thing to do is for Smith to issue the warrant. If it turns out that Rule 41 only authorizes the part of the search that occurs in his home district, then the warrant will only authorize the part of the acts that occur in his district. But that’s fine, as the high likelihood is that no warrant will be needed for the rest of the search given that the warrant requirement does not apply outside the United States.

Issue 2: Failure to Specify How the Surveillance Tool Will Be Installed

Now I’ll turn to Smith’s second reason to deny the application: the failure of the application to explain how the surveillance tool would be installed. I think this part of the opinion is wrong because the Supreme Court rejected a very similar argument in Dalia v. United States, 441 U.S. 238 (1979). Dalia involved a Title III warrant to install a bugging device. Like the surveillance device here, the bugging device in Dalia required a two-step search: first, a covert entry to install the bugging device, and second, use of the bug to monitor the place searched over time. The defendant argued that the warrant was improper because it didn’t say anything about the way in which the first step would be executed. The Supreme Court rejected this position:

Nothing in the language of the Constitution or in this Court’s decisions interpreting that language suggests that . . . search warrants also must include a specification of the precise manner in which they are to be executed. On the contrary, it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant — subject, of course, to the general Fourth Amendment protection “against unreasonable searches and seizures.”

Recognizing that the specificity required by the Fourth Amendment does not generally extend to the means by which warrants are executed, petitioner further argues that warrants for electronic surveillance are unique because often they impinge upon two different Fourth Amendment interests: the surveillance itself interferes only with the right to hold private conversations, whereas the entry subjects the suspect’s property to possible damage and personal effects to unauthorized examination. This view of the Warrant Clause parses too finely the interests protected by the Fourth Amendment. Often, in executing a warrant, the police may find it necessary to interfere with privacy rights not explicitly considered by the judge who issued the warrant. For example, police executing an arrest warrant commonly find it necessary to enter the suspect’s home in order to take him into custody, and they thereby impinge on both privacy and freedom of movement. See, e.g. United States v. Cravero, 545 F.2d 406, 421 (CA5 1976) (on petition for rehearing). Similarly, officers executing search warrants on occasion must damage property in order to perform their duty. See, e.g., United States v. Brown, 556 F.2d 304, 305 (CA5 1977); United States v. Gervato, 474 F.2d 40, 41 (CA3), cert. denied, 414 U.S. 864 (1973).

It would extend the Warrant Clause to the extreme to require that, whenever it is reasonably likely that Fourth Amendment rights may be affected in more than one way, the court must set forth precisely the procedures to be followed by the executing officers. Such an interpretation is unnecessary, as we have held — and the Government concedes — that the manner in which a warrant is executed is subject to later judicial review as to its reasonableness.

It seems to me that Magistrate Judge Smith’s argument is pretty much the same argument that was raised and rejected in Dalia. So Smith’s argument seems pretty unpersuasive on this issue, too.

Anyway, it’s a fascinating case. The territorial question is complicated and likely to reoccur, so it’s particularly worth watching. It will be interesting to see if the government appeals the denial, or, perhaps more likely, if the government amends the application to make extra sure they’re covered on the video surveillance issue and then tries again (perhaps before another magistrate judge in the district, cough, cough?). Also, it’s worth noting that the Fifth Circuit is still working on the appeal from Smith’s order on the Fourth Amendment and cell-site surveillance. Oral argument was held on October 2, 2012, and the opinion has not yet issued. The amicus brief I filed in that case is here.

UPDATE: My former colleague and electronic surveillance guru Mark Eckenwiler writes in with his thoughts on Smith’s third argument, which he also finds unpersuasive:

I agree that the application should be analyzed under the video surveillance precedents, given that the FBI is asking to take recurring photographs. However, Magistrate Judge Smith goes astray in applying that precedent.

Specifically, the controlling authority (Cuevas-Sanchez, 1987) holds that video surveillance warrants embody certain requirements borrowed from the Wiretap Act (Title III), including that

the warrant must require that the interception “be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under [Title III]“….

In that case, the Fifth Circuit upheld the warrant used, which the court describes as merely “directing the police to minimize observation of innocent conduct.”

By contrast, Magistrate Judge Smith characterizes Cuevas-Sanchez as requiring that the warrant contain “a statement of the steps to be taken to assure that the surveillance will be minimized ….” (P. 11; emphasis added.) He then finds the affidavit’s promise—that “[s]teps will be taken to assure that data gathered through the technique will be minimized”—inadequate and denies the application on that ground.

This is wrong for two separate reasons. First, as noted, Magistrate Judge Smith invents an additional “steps” requirement nowhere found in the Fifth Circuit test. Indeed, cases construing the Wiretap Act (from which the minimization requirement is borrowed) do not require particular steps to be laid out in the order; rather, the test is whether the actual conduct of the agents is reasonable overall in light of several factors, including the nature and scope of the criminal enterprise and the inferences that may be drawn about a conversation by the identity of the participants. See United States v. Brown, 303 F.3d 582, 604 (5th Cir. 2002). In this regard, Judge Smith also wrongly denies the application on the grounds that the minimization may be imperfect: “there remains a non-trivial possibility that the remote camera surveillance may well transmit images of persons not involved in the illegal activity under investigation.” It is well established that Title III, and thus the parallel standard for video surveillance warrants,

does not “require[ ] government agents to avoid intercepting all nonrelevant conversations when conducting a wiretap investigation.” On the contrary, the practical necessities of conducting a wiretap may, in some circumstances, inevitably lead to the interception of some conversations outside the scope of the wiretap order ….

303 F.3d at 604 (footnote citation omitted).

Second, Judge Smith wrongly focuses on the agent’s affidavit. What matters, however, is the language of the warrant, which (like a wiretap order) need only command generally that minimization occur. It is curious that he does not quote the proposed warrant’s minimization language.

Current events in Boston raise the question of whether the Fourth Amendment allows the government to conduct house-to-house searches for an armed and dangerous suspect on the loose. Assume the police enter a home without consent searching for Dzhokhar Tsarnaev; does the entry violate the Fourth Amendment? The answer depends on whether such home entries are “reasonable” under the Fourth Amendment, which requires a case-by-case balancing of the government’s interest in making the searches and the scope of the privacy invasion. The constitutional question would seem to depend on whether the searches are reasonably limited in scope (such as limited to a specific geographic area), the dangerousness of the suspect (here, very high), and the strength of the government’s case that the suspect may be in the area and cannot be caught another way. Fortunately there aren’t a lot of cases on anything like we’re seeing in Boston, at least as far as I could find. The closest cases I know of involve roadblocks instead of home searches, which is in the ballpark of dragnet searches and seizures but not particularly close on the facts. See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (noting in dicta that “the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route.”); United States v. Paetsch, — F.Supp.2d —-, 2012 WL 5213011 (D.Colo. 2012) (dragnet roadblock at intersection to catch bank robber held reasonable under the Fourth Amendment).

Note that caselaw on these sorts of facts are particularly unlikely for reasons beyond the fortunate rarity of their occurrence. The suspect won’t have Fourth Amendment standing to bring a suit or a motion to suppress to challenge a search of someone else’s house in which he was hiding. See Rakas v. Illinois, 439 U.S. 128 (1978). As a result, only the legitimate residents could bring such actions in a civil case. And if they did bring such suits, qualified immunity would bar recovery unless the violation was clearly established — which is unlikely here given the novelty of the facts.

Today the Supreme Court handed down Missouri v. McNeely, a Fourth Amendment case involving whether the government needs a warrant to draw blood after a suspect’s arrest for drunk driving to determine the suspect’s alcohol level. The Court held that whether a warrant is required “must be determined case by case based on the totality of the circumstances” to determine if the government could have obtained a warrant “within a reasonable amount of time” or if obtaining a warrant would “produce unacceptable delay” in light of the exigency of the dissipating alcohol levels in the arrestee’s blood.

So how do the police know when they need a warrant to conduct a blood draw following a drunk driving arrest? The majority starts with this general guidance: If the police can “reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” On the other hand, if case by case circumstances “make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test,” no warrant is needed.

So that’s the general guidance. How about specifics? Here’s one piece of guidance the majority offers on when a warrant must be obtained:

[In] a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer[, . . ]there would be no plausible justifica­tion for an exception to the warrant requirement.

More broadly, the issue seems to be how much delay is introduced by getting a warrant. Can the officers get the warrant “within a reasonable period of time”? If the jurisdiction allows telephone warrants, or otherwise has ways to get warrants quickly, then that ability will push in the direction of needing a warrant:

[T]echnological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge’s es­sential role as a check on police discretion, are relevant to an assessment of exigency.

On the other hand, if the warrant process becomes delayed, then exigent circumstances may come to exist:

While experts can work backwards from the BAC at the time the sample was taken to determine the BAC at the time of the alleged offense, longer intervals may raise questions about the accuracy of the calculation. For that reason, exigent circumstances justifying a warrantless blood sample may arise in the regular course of law en­forcement due to delays from the warrant application process.

The standard thus requires each officer to have a good sense of how long it would take to get a warrant in a particular setting, as well as how quickly the evidence is needed given the exigency of the dissipating alcohol in the blood:

[B]ecause “[t]he police are presumably familiar with the mechanics and time involved in the warrant process in their partic­ular jurisdiction,” post, at 8 (opinion of ROBERTS, C. J.), we expect that officers can make reasonable judgments about whether the warrant process would produce unacceptable delay under the circumstances.

A few quick thoughts:

1) At the time of the cert grant, it was widely expected that this case would be an easy win for the government. It’s somewhat surprising that the Court rejected the government’s proposed bright-line test. This is more evidence of my view that there is a rights/remedy distinction in how the current Supreme Court approaches Fourth Amendment cases. If the case is about remedies, the government pretty much always wins. But if the case is about Fourth Amendment rights, the current Court can be hard to predict.

2) It will be interesting to see if this issue will end up back at the Court in a few years to resolve the various ways that lower courts are likely to apply this general guidance. I suspect it will.

3) There is a long-running dispute between the use of rules vs. standards in the interpretation of the Fourth Amendment. Today’s case is a big win for standards, all the more interesting because Justice Scalia was in the majority.

4) I see echoes of Arizona v. Gant in today’s decision. The Court divided 5-4 in adopting a defense-friendly narrow interpretation of a decades-old precedent, adopting a standard instead of a bright-line rule sought by the government that reflected how many courts had interpreted the prior precedent. The line-ups are somewhat similar, too. Not identical, but similar.

I would be grateful if commenters could point to cases, statutes, or secondary materials which address these questions: In Terry stops, traffic stops, and other police encounters with individuals which do not involve an arrest, under what circumstances can a law enforcement officer temporarily detain a person’s firearm? For example, for officer safety during a traffic stop? To call a central database and see if the gun’s serial number is on a list of stolen guns?

In United States v. Jones, 132 S.Ct. 945 (2012), the Supreme Court announced that the Katz reasonable-expectation-of-privacy test is not the only test for what is a Fourth Amendment search. According to Jones, Katz supplemented but did not replace the trespass test that the Court indicated had existed before Jones. According to Jones, “[t]respass . . conjoined with . . . an attempt to find something or to obtain information” constitutes a search.

In a forthcoming article that I updated today on SSRN to the near-final version, The Curious History of Fourth Amendment Searches, I looked closely at the history of the Fourth Amendment search doctrine and concluded that no trespass test existed before Katz. Here’s my summary from the introduction of the article:

The apparent restoration of a pre-Katz trespass test in Jones reflects the widely-shared assumption that pre-Katz search doctrine was in fact based on trespass law. Like many Fourth Amendment scholars, I have previously echoed the common wisdom that this is true. But because the point was only of historical interest, I had not looked closely at pre-Katz law to assess its accuracy. Jones makes the history of Fourth Amendment law doctrinally significant, however, meriting a more careful look at the early understandings of “searches.” This essay explores the history of the Fourth Amendment and reaches the surprising conclusion that no trespass test was used in the pre-Katz era. Neither the original understanding nor Supreme Court doctrine equated searches with trespass. Jones purports to revive a test that did not actually exist.

In short, the common wisdom is false. Before Katz, the Court did not use a specific formulation to identify what counted as a Fourth Amendment search. Supreme Court cases on the meaning of “searches” generally reasoned by analogy to the canonical example of home invasion. But the decisions used no particular methodology to guide the analogy, and opinions sometimes focused on privacy or the perceived invasiveness of the government’s conduct. The Court began to focus on physical intrusion as a guide starting in the 1920s. But even decisions focused on physical intrusion eschewed reliance on the technicalities of trespass law. No historical trespass era existed. Surprisingly, the first case applying a trespass test to identify Fourth Amendment searches appears to be United States v. Jones.

The absence of a pre-Katz trespass test means that courts are going to have to articulate what the new trespass test means, I argued:

Both today and when the Fourth Amendment was adopted, trespass has been a protean concept that can be construed broadly or narrowly. Trespass law today may be different in some ways than trespass law then, raising questions of which era of trespass doctrine counts. Because the trespass test did not exist before Jones, pre-Katz law does not directly answer these questions. Courts called on to interpret the trespass test must do so with little in the way of history or precedent to guide them.

In light of that challenge, I was particularly interested to see how the Supreme Court interpreted the Jones inquiry in today’s decision in Florida v. Jardines. Jardines was 5-4, and Justice Scalia was the senior-most Justice in the majority; that means he assigned the opinion to himself. Given that Justice Scalia generally is not a fan of writing Fourth Amendment opinions, it’s possible that he kept the case to himself to try to further establish his non-Katz approach to search doctrine from Jones. Either way, Jardines is the first Supreme Court application of the Jones test after Jones itself.

But just what kind of test is it?

Notably, Justice Scalia nowhere uses the word “trespass” to describe the Jones inquiry. Instead, he mostly sticks to the concept that the Court had used in the 1961 Silverman case, a few years before Katz, of physical penetration or intrusion into a constitutionally protected area. Here’s the heart of Scalia’s analysis in Jardines:

When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U.S. ––––, ––––, n. 3 (2012) (slip op., at 6, n. 3). By reason of our decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), property rights “are not the sole measure of Fourth Amendment violations,” Soldal v. Cook County, 506 U.S. 56, 64, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992)—but though Katz may add to the baseline, it does not subtract anything from the Amendment’s protections “when the Government does engage in [a] physical intrusion of a constitutionally protected area,” United States v. Knotts, 460 U.S. 276, 286, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (Brennan, J., concurring in the judgment).

That principle renders this case a straightforward one. The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—- in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.

It’s very interesting that Justice Scalia does not use the word “trespass” to describe the Jones test. Justice Scalia also does not use the word trespass when he describes the holding of Jones later in the opinion. He writes:

[B]ecause the GPS receiver [in Jones] had been physically mounted on the defendant’s automobile (thus intruding on his “effects”), we held that tracking the vehicle’s movements was a search: a person’s “Fourth Amendment rights do not rise or fall with the Katz formulation.

Again, note the absence of the word trespass, which was the term used several times in Jones. Instead, the language chosen here is “physical mount[ing]” that “intrud[es]” on protected areas. The absence of the word trespass is particularly interesting given that Justice Alito’s dissent criticizes the majority for misapplying trespass law. It’s at least a possibility that Justice Scalia not address this point in detail in his majority opinion because he wasn’t actually applying a technical trespass test.

With that said, it’s not at all clear that Jardines interprets the Jones test as a physical intrusion test that is necessarily different from trespass. Throughout Jardines, Justice Scalia refers to the Jones inquiry as “property based.” Consider this passage:

The Katz reasonable-expectations test “has been added to, not substituted for,” the traditional property-based understanding of the Fourth Amendment, and so is unnecessary to consider when the government gains evidence by physically intruding on constitutionally protected areas. Jones, supra, at ___ (slip op., at 8).

Thus, we need not decide whether the officers’ investigation of Jardines’ home violated his expectation of privacy under Katz. One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.

How to make sense of these different passages?

One way to square them is that perhaps the Jones test is not about the technicalities of trespass doctrine but rather about physical intrusion into property. Under this reading, the Jones inquiry protects private property from physical intrusion. What counts as a “physical intrusion”? Most cases will be easy — just watch the officer or tools he is using as they cross into the constitutionally protected area of the house, paper, person, or effect. The facts of Jones then become the closer case, with a “physical mount[ing]” of the government’s device to the car deemed a sufficient interference with the property interest to “intrude” onto the effect of the car. The issue isn’t the technicalities of trespass law, but rather the presence of physical intrusion into property owned by the person — specifically, their houses, persons, papers, and effects.

If I’m right about that, a case that is somewhat similar to Jones is the long-forgotten per curiam decision in Clinton v. Virginia, 377 U.S. 158 (1964), which had facts similar to those of Silverman except the microphone was in the wall rather than through the wall. No one remembers Clinton because the the Supreme Court ruled for the defendant in four words – “The judgment is reversed” — with a citation to Silverman. But at least looking at the facts from the state court opinion it reversed, Clinton might help bolster the lineage of Jones with a pre-Katz case applying the Silverman “physical penetration” test where the listening device was on the edge of the constitutionally protected area rather than clearly inside it.

Last Friday the Ninth Circuit decided United States v. Cotterman, a case on the border search exception to the Fourth Amendment. The en banc court held that manually searching for files through a computer is allowed at the border, but that “forensic examination” at the border requires reasonable suspicion. As the Court put it, “a manual review of files on an electronic device” is permitted without reasonable suspicion but “application of computer software to analyze a hard drive” is not.

In Cotterman, the agents followed a law enforcement common procedure for searching the computer: They made an image of the hard drive and then used the popular forensic software EnCase to search the image. According to Footnote 8, the EnCase program “exhibit[s] the distinctive features of computer forensic examination.” Those distinctive features are listed as the following:

The program copied, analyzed, and preserved the data stored on the hard drive and gave the examiner access to far more data, including password-protected, hidden or encrypted, and deleted files, than a manual user could access.

Here it is helpful to reintroduce the distinction I have written about often between virtual and physical approaches to computer searches:

Digital evidence searches generally occur at both a “logical” or “virtual” level and a “physical” level. The distinction between physical searches and logical searches is fundamental in computer forensics: while a logical search is based on the file systems found on the hard drive as presented by the operating system, a physical search identifies and recovers data across the entire physical drive without regard to the file system.

Most users think of computer searches as occuring at the virtual level, because that’s the user experience. But computer forensic software works at the physical level: it treats the hard drive as a physical device that contains millions of zeros and one, not as a virtual “box” of information accessed through an operating system. User profiles and most password protection operate only at a virtual level, so a goverment forensic analyst operating at a physical level wouldn’t even notice the difference unless he was specifically looking for it.

One way to read Cotterman is that agents have to take a virtual approach. They are allowed to open the virtual box of the machine and look through it as a user would from a virtual perspective. On the other hand, they’re not allowed to make an image and search the image using forensic software, treating the hard drive as a physical machine with data readily available to the forensic analyst.

But whether that understand is correct, the Cotterman opinion raises some interesting questions about where the lines are here. In particular, here are four questions I have:

1) Are there any limits on how much manual searching agents can conduct without reasonable suspicion? Can the agents do anything as long as they do it manually? Or are they limited to only “reasonable” manual searches? And if the latter, what is the line between a “reasonable” manual search and an “unreasonable” manual search? Does the amount of time taken matter? The type of files viewed using the manual search?

2) Imagine the agents are conducting a manual search at the border and they come across password-protected files. They lack reasonable suspicion, and as a result they are not allowed to use forensic software to gain access to those password-protected files. But are they allowed to guess passwords to try to view the files? Imagine the electronic device is an iPhone that has a passcode lock on it. The agents guess the 4-digit code correctly — say, 1-2-3-4 — and they then view the information on the phone. Is that permitted without reasonable suspicion because it is still only a manual search? Or is that not permitted because password-protection usually blocks manual access?

3) Can law enforcement make an image of the hard drive and then mount the hard drive on a separate machine and then search it manually? The major reason investigators make images and search only the images is to maintain evidentiary integrity: Searching a computer can alter the evidence on it, so agents work off an image in order to retain the original as original. Are they still allowed to do that without reasonable suspicion? Or is making an image part of the “computer forensic examination” for purposes of the Fourth Amendment?

4) Can law enforcement run a forensic software program on the hard drive manually? Imagine a government agent has a thumb drive containing a copy of Recover Files, a free program that recovers deleted files available from hard drives. Can the agent insert the thumb drive and run the program to see the deleted files on the hard drive? Is that a manual search or a forensic examination? And what if the user happens to have such a program pre-installed on the hard drive? If the program is pre-installed, does using it count as a manual search or a forensic examination?

I’d be very interested in reader responses based on their read of the opinion (or, this being the Internet, their personal sense of justice and goodness). Also, I’d be particularly interested in hearing from readers about how extensive a search can be conducted using just manual search techniques. Are there ways that agents can conduct highly invasive manual searches? I assume a manual search can’t get into the slack space, for example, but I would think it can still be quite invasive.

UPDATE: I have added a fourth question. And a comment from the commenter Jim Byrne prompts a fifth question:

If law enforcement come across a flash drive or other storage device not connected to a computer, can they connect the drive to a computer and manually look through its contents? Is connecting the flash drive to the computer and searching it a “manual search,” or is it using software to analyze the drive that requies reasonable suspicion?

The decision is today’s United States v. Cotterman (9th Cir. Mar. 8, 2013) (en banc). An excerpt from the court’s summary; note that most border searches can generally — for historical reasons — be done even without individualized suspicion, but here the court required such suspicion for computer searches:

[A] border search of a computer is not transformed into an “extended border search” requiring particularized suspicion simply because the device is transported and examined beyond the border.... [T]he fact that the forensic examination occurred 170 miles away from the border did not heighten the interference with the defendant’s privacy, and the extended border search doctrine does not apply, in this case in which the defendant’s computer never cleared customs and the defendant never regained possession....

[T]he forensic examination of the defendant’s computer required a showing of reasonable suspicion, a modest requirement in light of the Fourth Amendment.... [I]t is the comprehensive and intrusive nature of forensic examination — not the location of the examination — that is the key factor triggering the requirement of reasonable suspicion here.... [T]he uniquely sensitive nature of data on electronic devices, which often retain information far beyond the perceived point of erasure, carries with it a significant expectation of privacy and thus renders an exhaustive exploratory search more intrusive than with other forms of property....

[In this case,] the border agents had reasonable suspicion to conduct an initial search at the border (which turned up no incriminating material) and the forensic examination. The en banc court wrote that the defendant’s Treasury Enforcement Communication System alert, prior child-related conviction, frequent travels, crossing from a country known for sex tourism, and collection of electronic equipment, plus the parameters of the Operation Angel Watch program aimed at combating child sex tourism, taken collectively, gave rise to reasonable suspicion of criminal activity. ...

[P]assword protection of files, which is ubiquitous among many law-abiding citizens, will not in isolation give rise to reasonable suspicion, but ... password protection may be considered in the totality of the circumstances where, as here, there are other indicia of criminal activity.... [T]he existence of password-protected files is also relevant to assessing the reasonableness of the scope and duration of the search of the defendant’s computer.... [T]he examination of the defendant’s electronic devices was supported by reasonable suspicion and that the scope and manner of the search were reasonable under the Fourth Amendment.

Thanks to Michael Smith for the pointer, and congratulations to Orin on being cited!

UPDATE: Before writing this post, I checked on whether Orin had posted on this, but I didn’t check after I was done, and it turns out his post came up just as I was about to post mine. I’m therefore turning off the comments, so they can go to Orin’s post instead.

Applying law to computers and the Internet often requires a choice between applying the law from the perspective of physical reality or the perspective of virtual reality. When courts look to physical reality, they model the facts based on how computers and the network actually work. When courts look to virtual reality, they model the facts based on the perspective of a user who doesn’t know how computers work.

I was reminded of that choice when I recently came across United States v. Morgan, Crim No. 03-25-DLB (E.D. Ky. October 15, 2003). In this case, the defendant regularly viewed child pornography from an online newsgroup and then tried to delete the files using a program called “Internet Eraser.” The defendant’s wife suspected that her husband was viewing child pornography, so she installed a program that took screen shots of the computer every 10 seconds. The defendant’s wife later viewed the screen shots, saw child pornography images from when her husband was using the computer, and turned over the screenshots to the police. She also consented to a government search of the computer, which revealed many images of child pornography that the “Internet Eraser” program had not fully erased. After he was charged with possessing images of child pornography, the defendant moved to suppress the images from both the hard drive and the screen shots. The district court denied the motion on the ground that his wife had common authority to consent to a search of the hard drive and was a private actor when she obtained the images using the screen shot program.

So far, so good. But the district court then added this unusual argument:

By attempting to delete the images, Defendant relinquished any expectation of privacy he had in the images themselves. See California v. Greenwood, 486 U.S. 35, 37 (1988) (Defendant has no reasonable expectation of privacy in his curb-side trash). . . . [B]y attempting to delete the pornographic images, Defendant was in essence, trying to throw out the files. In that regard, the facts are similar to Greenwood and its progeny. For these reasons, the Court concludes that Defendant’s relinquishment of any reasonable expectation of privacy in the pornographic images by attempting to delete the images is an alternative basis for denying the suppression motion.

The Sixth Circuit affirmed without mentioning the trash analogy.




The Supreme Court decided Florida v. Harris today, the Fourth Amendment case on when a drug-sniffing dog’s alert constitutes probable cause. In a 9-0 decision by Justice Kagan, the Supreme Court overturned the Florida Supreme Court standard that had required production of records of the dog’s reliability in the field in order to determine probable cause. Today’s opinion emphasizes that the probable cause inquiry is a practical common-sense judgment based on a totality of the circumstances that cannot follow any specific rules. As a result, the Florida Supreme Court’s specific rules are improper. So far, nothing surprising. The problem is that dog-sniffing cases are very common, and yet judges are not well-suited to know when a dog is sufficiently reliable. So how should judges apply this “totality of the circumstances” standard? Here’s the key language from Harris:

If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.

Defense attorneys can then rebut the presumption with specific evidence:

A defendant, however, must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant, as the Solicitor General acknowledged.

Perhaps I am misreading this, but at first blush it seems that the Court has said there is no particular test and then created a particular test: Certification from a “bona fide” organization based on reliability “in a controlled setting” or “recent[] and successful[]” completion of a training program creates a presumption of probable cause that then can be rebutted by defense counsel. Granted, the Court does say that certification or training can create a presumption of probable cause, rather than that it does. But I’m not sure there is a difference. The state has the burden of proving probable cause. If a fact “can” create a rebuttable presumption that the burden is satisfied, does that mean that judges have the discretion to say that the fact creates a presumption or free to say it doesn’t create that presumption? Or does it simply mean that the fact does create a presumption that the defense can then rebut? Imagine a case in which the dog was certified by a “bona fide” K-9 school but there is no other evidence of reliability. The trial judge concludes that this wasn’t enough. If the defense did not put on specific evidence of unreliability, should the court of appeals overturn this decision because the trial court failed to apply the presumption? I strongly suspect that lower courts will interpret that part of Harris as imposing the presumption when there is “bona fide” certification or “recent and successful” training, but I’m not entirely sure if that’s the right reading of the case. I’d be interested to know what readers think of this.

Anyway, I may have more to say about the case — as well as thoughts on today’s Fourth Amendment decision in Bailey v. United States — but I have a class coming up shortly so I’ll have to save the rest for later.

On February 26, the Supreme Court will hear oral argument in Maryland v. King, a case about the constitutionality of DNA collection and analysis. The case presents the latest skirmish in an ongoing debate in Fourth Amendment law: Should the reasonableness of Fourth Amendment searches be analyzed through the traditional default rule that a search ordinary requires a warrant, absent a specific exception to the warrant requirement? Or does reasonableness require a balancing of interests in each case?

I. The Facts

Alonzo King was arrested and charged with second-degree assault. After charges were formally filed, Maryland state officials collected a sample of his DNA by means of a swab of the inside of his cheek. The officials sent the swab to a company that analyzed the DNA on the swab and provided the state with a DNA profile. A DNA profile reports back the data from a few specific regions on an individual’s chromosones selected because they are not thought to correspond to any particular traits or characteristics. The profile was entered into a computer database of DNA profiles, and the computer reported back a match with a DNA profile taken from a sample in a 2003 sexual assault. King was charged with rape and other crimes for the 2003 assault. King moved to suppress the evidence of the DNA match on the ground that obtaining and analyzing the sample was unconstitutional. The question in the King case at the Supreme Court was whether the initial collection and analysis violated the Fourth Amendment. The trial court denied the motion to suppress, and King was found guilty of first-degree rape and sentenced to life in prison without the possibility of parole.

II. The Framework of Reasonableness

The Fourth Amendment prohibits unreasonable searches and seizures. The parties in King agree that taking the DNA sample by means of the buccal swab was a Fourth Amendment search. Their disagreement concerns whether it is a reasonable search or an unreasonable one.

That disagreement largely hinges on a long-running debate in Fourth Amendment caselaw. One view, which was dominant in the middle of the 20th Century, is that a search is “reasonable” in the Fourth Amendment setting only if pursuant to a warrant or a specific exception to the warrant requirement. See, e.g., Katz v. United States, 389 U.S. 347, 357 (1967) (“[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”). The second view, which was largely invented in the 1960s and has become more influential in the last decade, is that whether a search is “reasonable” must be evaluated on a case by case basis by balancing the government interests and the privacy interests. See, e.g., Samson v. California, 547 U.S. 843, 848 (2006) (“Under our general Fourth Amendment approach we examine the totality of the circumstances to determine whether a search is reasonable within the meaning of the Fourth Amendment. Whether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”). For simplicity, we can call the former the “per se” approach and the latter the balancing approach.

The per se approach remains in force in most areas of Fourth Amendment cases. In recent years, however, the balancing approach has been making inroads. And King presents a stark choice between the two. The state (and the United States as amicus) advocates a balancing approach. The state reasons that the search in King is reasonable because the intrusion is not particularly invasive while the DNA profile has many uses that further important government interests. On the other hand, King mostly advocates the per se approach. King reasons that a DNA swab and analysis does not fit any of the traditional exceptions to the warrant requirement, such as search-incident-to-arrest or “special needs” exception. Because no exception to the warrant requirement applies, the search cannot be reasonable without a warrant. Here, the choice of approach may lead to the answer. (Or, for the cynical realists who are reading, the availability of the choice gives the Justices room to justify either result.) It would be possible for the Court to rule for King under the balancing approach or for the state with the per se approach. But, on the whole, the per se approach tends to favor King while the balancing approach tends to favor the state.

III. Reading the Tea Leaves

How might the Justice line up on this question? It’s hard to say. The leading case for the balancing approach is Samson, a case upholding suspicionless searches of a person out on parole. The 6-3 opinion by Justice Thomas was joined by Chief Justice Roberts, Justice Scalia, Justice Kennedy, Justice Ginsburg, and Justice Alito. The dissenters included two Justices no longer on the Court — Justice Stevens and Souter — as well as Justice Breyer. If that line-up is an indication of how the Justices will line up in King, then King has an uphill battle. But I’m not sure Samson sheds much light on King. The balancing approach in Samson was justified largely on the state’s “earnest concerns respecting recidivism, public safety, and reintegration of parolees into productive society,” Samson, 547 U.S. at 855 n.4, recognizing the special position of the state with respect to individuals on parole. In contrast, the state’s interest in King is really a more general interest in solving crimes through DNA matches. Also, King involves privacy in new technologies The 9-0 vote in the recent GPS decision, United States v. Jones, 132 S.Ct. 945 (2012), suggests that questions of new technology can lead to some unpredictable voting alignments.

Tea-leaf reading on the Roberts Court often means speculating about where Justice Kennedy might come out. Justice Kennedy’s past writings suggests particular deference to law enforcement techniques designed to identity suspects. Consider some of the language from Justice Kennedy’s opinion in Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004), which involved a Fourth and Fifth Amendment challenge to a state law requiring persons to identify themselves when stopped by the police. Here’s one quote: “Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.” More from the opinion: “One’s identity is, by definition, unique; yet it is, in another sense, a universal characteristic.” And still more: “In every criminal case, it is known and must be known who has been arrested and who is being tried.” It’s true that DNA identification is really focused on identifying a match with past crimes, not identifying a suspect at the time of arrest. Still, Hiibel seems to hint (at least to me) that Justice Kennedy is more likely than not to vote for the government in this case.

Another Justice to watch in King is Justice Scalia. Justice Scalia dislikes vague balancing tests, and he is no fan of “slosh[ing] our way through the factbound morass of reasonableness.” Scott v. Harris, 550 U.S. 372, 383 (2007). He might be more willing than Justice Kennedy to apply the traditional rule of a default warrant requirement. Certainly King’s brief has several arguments that seem to be written with Justice Scalia in mind. The brief not only appeals to Justice Scalia’s preference for rules over standards, but it also includes some well-known Scalia-isms. (See, for example, page 52: “This wolf comes as a wolf.”) With that said, Justice Scalia has written his fair share of opinions celebrating the overall reasonableness approach, albeit not paired necessarily with interest balancing. Justice Scalia’s concurring opinion in California v. Acevedo, 500 U.S. 565 (1991), comes to mind: It links reasonableness to common law rules rather than the default rule of a warrant. But it’s not at all clear what guidance the common law might give to a problem like DNA collection.

IV. Three Additional Thoughts

I’ll conclude with three thoughts. First, I found the amicus brief from scientists in favor of neither party to be very helpful. It’s very good at explaining what DNA profiles can and can’t reveal. If you want to get up to speed on the technology, it’s very much worth reading.

Second, I think it may be analytically helpful to the Court to break down the “search” question into two stages. First, there’s the buccal swab. But second, there’s the analysis of the sample. Under Skinner v. Railway Labor Executives Association, 489 U.S. 602, 616 (1989), analyzing the sample to obtain the DNA profile is a second search: It reveals information about the DNA not otherwise visible, searching it much like opening a closed container. (At the same time, entering the profile into the DNA database and obtaining the match would not be a search. The data contained in the profile was disclosed to the police as the fruit of the search, and once the police have the data in their possession they can enter it into a database and manipulate it without further limits from the Fourth Amendment.) So the legality of the government’s conduct boils down to the reasonableness of two searches: The buccal swab, and the creation of the DNA testing.

Why does this matter? It doesn’t really matter in this case, but it might help answer a potentially important follow-up question. The government still has the original DNA sample from the initial swab. They could conduct more DNA testing on that swab, and they might test to obtain information beyond just the DNA profile. If there’s a majority in King to say that the conduct was reasonable, recognizing two different searches could allow the Justices to say that the DNA test to get the profile is reasonable here while a possible future DNA test for other reasons might be unreasonable. That is, breaking down the conduct into two distinct searches could allow the Court to craft a narrower rule that extends different privacy protections to different kinds of DNA testing from the same sample.

Third, I doubt the dispute in King would have been before the Supreme Court if the government had litigated the case more carefully. Unless I’m missing something, the good-faith exception to the exclusionary rule almost certainly should apply here. Under Illinois v. Krull, 480 U.S. 340 (1987), the exclusionary rule does not apply when offers conduct a search or seizure in reasonable reliance on a statutory authorization. In this case, the officers relied on the Maryland DNA Collection Act. Given that the constitutionality of searches pursuant to the Act is not clear-cut, suppression should not be an available remedy. But as far as I can tell, the state forgot to make this argument below. As a result, it’s not an issue in the case.

The Massachusetts Supreme Judicial Court has asked for amici help in two pending cases about the Fourth Amendment and GPS surveillance:

In these cases involving co-defendants, the issue presented, among others, is whether an affidavit demonstrated sufficient probable cause in support of an application for a warrant secretly to attach a GPS device to a motor vehicle and to monitor tracking information; whether a passenger has standing to challenge the evidence seized as a result of such monitoring; whether a passenger in a vehicle to which a GPS device is attached is either “seized” or “searched” to the same extent as the driver or the vehicle itself.

On the first question, probable cause, I gather there is a preliminary issue of whether a warrant or probable cause is required to install the GPS device. There is litigation pending on that issue in the federal courts — it’s a difficult issue, in my view — although I don’t know if the issue is also being litigated in the Massachusetts case. Assuming that already has been answered in the affirmative or (unfortunately) has been conceded away, the question becomes what kind of probable cause is deemed sufficient. In the case of a Fourth Amendment search, the ordinary kind of probable cause is probable cause to believe that there is particularly described evidence to be seized inside the particularly described place to be searched. I don’t know how this is supposed to work with a GPS warrant, though. In the case of a GPS search, the government isn’t actually looking to search inside the car for evidence. The car is the place where the GPS is installed, and under Jones it is the “place” where the search occurs. But the information sought is outside of that place, not inside it: The government wants to know where the car will go, not what is inside the car. Perhaps the constitutional standard should be probable cause to believe that the location of the car will be evidence of crime. But if so, I don’t know how you draft the warrant. Is the place to be searched the car, and the evidence to be seized just something abstract like “information about the location of the car”? I’m not sure. That’s not a terrible starting point if you need to cram it into existing doctrine, although it’s not a very clean fit.

On the second question, standing, I think the proper scope of standing depends on what ground(s) the Court uses to conclude that the use of a GPS device was a search. If the SJC is only relying on the Jones trespass rationale, then under Jones I would think the Court needs to consider whether the driver and passenger each individually have sufficient property rights (either as owner or bailee) to challenge the search. See Jones, footnote 2. If the SJC is relying on a reasonable expectation of privacy approach but not the mosaic theory to say that the use of the GPS device is a search — which seems unlikely, but I suppose it’s still theoretically possible — then I would think the framework of Rakas v. Illinois, 439 U.S. 128 (1978), still applies. Finally, if the SJC is relying on the mosaic theory of the Jones concurrences to say that the use of the GPS device is a search, then there are lots of complex questions of standing and remedy that the Court has to answer. In my article, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311 (2012), I flag some of those questions that need to be answered if a court adopts the mosaic approach. An excerpt:

If the exclusionary rule generally applies to mosaic search violations, courts will need to determine its scope. The first challenge is identifying who has standing to challenge a mosaic search. Fourth Amendment rights are personal, and individuals can invoke a remedy only if their own rights have been violated. The Fourth Amendment standing inquiry arises as an application of the reasonable expectation of privacy test. Every defendant must establish that his or her own reasonable expectation of privacy was violated to merit a ruling suppressing the evidence.

Standing raises difficult challenges for the mosaic theory because conduct that creates a mosaic may involve monitoring different people at different times to different degrees. Consider the facts of a recent district court case, United States v. Luna-Santillanes. Three conspirators ran a heroin trafficking enterprise and shared three cars. Different drivers drove the three different cars at different times. Investigators installed GPS devices on all three cars and used the GPS devices to track the movements of the three defendants. The first car was monitored for two months; the second car was monitored for what the court called “a few” days; and the third car was monitored for only two days.

Assuming that the collective monitoring of the three cars constituted a search, who has standing to challenge it? Do all three defendants have standing because their location was monitored as part of a broader mosaic? Or must the standing inquiry look to each individual and consider whether the monitoring of that particular defendant was enough to constitute its own mosaic? Or perhaps the standing inquiry should operate on a car-by-car basis, limiting standing to primary drivers or passengers of particular cars? If the exclusionary rule applies to mosaic searches, courts will need to develop answers to these questions.

[Next] consider whether the exclusionary rule applies to the entire mosaic or only some part of it. To simplify matters, let’s use the prior assumption that seven days of GPS monitoring crosses the line to become a search. If the police monitor a GPS device for ten days, must the entire ten days of monitoring be suppressed? Or should courts only suppress the last three days of monitoring data that occurred after the search line was crossed? Further, imagine the police learn on day two of the ongoing surveillance that the suspect committed a crime. Should the evidence from day two be suppressed because it was part of the mosaic triggered after seven days, even though the collection of that evidence was not a search when it occurred? Or is the evidence from day two an inevitable discovery because it would have been discovered if the monitoring had stopped before the amount of monitoring crossed the mosaic threshold?

A related issue arises when investigators use surveillance to locate targets at a particular moment rather than to develop a picture of their lives over time. Consider a recent case involving a GPS device attached to a car used to transport heroin. Investigators used GPS tracking to find the car. After finding the car, officers conducted a pretextual traffic stop based on a traffic violation, asked for and obtained consent to search the car, and then retrieved two kilograms of heroin inside. Assuming the GPS device was used long enough to cross the threshold of a search, should the heroin be suppressed as a fruit of the poisonous mosaic search? Or does the exclusionary rule not apply because the stop was the product of a short-term use of the GPS device rather than a broader mosaic?

So holds today’s Tobey v. Jones (4th Cir. Jan. 25, 2013):

Mr. Tobey waited until there was a short line at the TSA screening checkpoint and then commenced the screening process by presenting his boarding pass and identification to the pre-screening agent. Mr. Tobey proceeded to the conveyor belt area and placed his belt, shoes, sweatshirt, and other carry-on items on the conveyor. Mr. Tobey was then diverted by Appellant-Agent Smith from the standard metal detector used as the primary screening apparatus to the AIT scanning unit for enhanced screening.

In anticipation that he might be subjected to enhanced screening, Mr. Tobey had written the text of the Fourth
Amendment on his chest as he believed AIT scanning was unconstitutional. Before proceeding through the AIT unit, Mr. Tobey calmly placed his sweatpants and t-shirt on the conveyor belt, leaving him in running shorts and socks, revealing the text of the Fourth Amendment written on his chest. Agent Smith advised Mr. Tobey he need not remove his clothes. Mr. Tobey calmly responded that he wished to express his view that TSA’s enhanced screening procedures were unconstitutional.

Tobey was handcuffed and arrested for “creating a public disturbance,” and later sued, claiming this violated the Fourth Amendment, and also violated the First Amendment because it constituted retaliation for his display of the Fourth Amendment and statements related to that. The panel majority concluded that Tobey’s First Amendment claim could go forward, and that if he proved his version of the facts — including that he was arrested because of his speech — he would prevail. (The panel majority also suggested that the arrest may have violated the Fourth Amendment: “Even conceding that Mr. Tobey’s behavior was ‘bizarre,’ bizarre behavior alone cannot be enough to effectuate an arrest. If Appellants caused Mr. Tobey’s arrest solely due to his ‘bizarre’ behavior, Appellants’ cannot be said to have acted reasonably.” But the trial court had granted defendants qualified immunity as to that claim, and Tobey has not yet had a chance to appeal that decision.)

That sounds right to me, but it’s not clear whether Tobey would ultimately prevail: The question would be whether Tobey was arrested because the officials thought his undressing suggested something dangerous was afoot (no First Amendment violation, even if it’s a Fourth Amendment violation) or because of his display of the Fourth Amendment and accompanying speech (which would make the arrest a First Amendment violation). In any case, if you’re interested, check out the long and detailed majority and dissenting opinions.

Thanks to Phillip Carter for the pointer.

UPDATE: I’m afraid I erred (twice, sorry to say) about the status of Tobey’s Fourth Amendment claim. The court did suggest, as I note above, that the arrest was unconstitutional, but because Tobey has not yet appealed the district court’s grant of qualified immunity to defendants on this claim, that issue was not before the court. My apologies for the error, and thanks to the reader who called it to my attention.

Today the Supreme Court heard argument in Missouri v. McNeely, a Fourth Amendment case on whether the police need a warrant to do a forced blood draw following a DUI arrest. Here are a few thoughts about the argument.

1) Does technology expand the scope of the warrant requirement? Today’s argument suggests that it might. In analyzing the reasonableness of a warrantless search in light of possible exigent circumstances, the amount of time that it would take to get a warrant is relevant. That led the Justices to ponder an intriguing question: How much time should they assume it takes to get a warrant? As communications technologies such as the phone and the Internet get better, it becomes easier to get a warrant more quickly. As the time it takes to get a warrant shrinks, the need for a warrantless search shrinks along with it — and therefore a warrantless search becomes less constitutionally reasonable. As a result, changing technology may expand the scope of the warrant protection. On the other hand, this can be a difficult question to predict empirically. Every jurisdiction is different, and the Justices can’t be sure how different jurisdictions might respond to a rule that requires warrants for such searches. Maybe they’ll be able to set up a system of fast warrants and maybe they won’t. The Justices can’t be sure.

2) Over at SCOTUSblog, Lyle Denniston thinks it is very clear that the Court will require a warrant at least in the ordinary DUI case. If so, it may turn out to be example of the current Justices having a more liberal take on the Fourth Amendment than the Warren Court did. In Schmerber v. California, in 1966, Justice Brennan wrote a majority opinion approving a warrantless blood draw in a drunk-driving case. There are some factual differences between this case and Schmerber, and it’s a rather cryptic opinion. But the general thrust of today’s argument seemed more defense-friendly than does Justice Brennan’s opinion in Schmerber.

Maybe the changing technology explains that — it’s hard to know. But it’s particularly interesting so soon after the Court’s recent 9-0 vote for the defense in the GPS case, United States v. Jones. Academics like to say that the Fourth Amendment is dead, but maybe it’s not so dead after all. Or at least maybe it’s not so dead when you’re talking about rights not remedies — and perhaps, more cynically, when you’re focusing on facts like a DUI arrest that have been known to happen to peers of the Justices.

3) I wonder, how much does this case actually matter? Several Justices caught on to one of the reasons why it might not matter much: The warrant protection doesn’t mean very much here because the facts of DUI cases and blood draws are very standardized. Requiring a warrant may amount to a formality. Along the same lines, there’s an interesting question as to whether the inevitable discovery exception would apply were a court to require a warrant that an agent does not obtain. If the court requires a warrant and an agent conducts a warrantless search anyway, can the agent argue that the blood recovered should be admitted anyway under the inevitable discovery exception to the exclusionary rule because he would have successfully obtained a warrant if he had not conducted the warrantless search? Cf. State v. Beckwith, 31 Conn. L. Rptr. 655 (Conn. Super. 2002). Lower courts have generally said “no” to those kind of arguments on the theory that they would negate the warrant requirement.

4) Finally, on the subject of remedies, I was interested to see that Justice Alito twice suggested that the police will want to get a warrant anyway, even if none is required, because it will help stave off suppression. Here’s Alito at page 19: “Even if they — even if we were to say that they don’t need [a warrant], they certainly have a strong incentive to get warrants because it insulates the search to a much greater degree from later challenge at a suppression hearing.” And at page 47: “That’s not true, because there’s a great advantage to the prosecution in having a search with a warrant as opposed to a warrantless search in terms of suppression; isn’t that correct?”

That used to be correct, but I’m not sure it’s correct any more — thanks in large part to recent decisions written and joined by Justice Alito. A decade ago, officers had an incentive to get warrants because the good faith exception to the exclusionary rule applied only if the officers had obtained a warrant. With the benefit of a warrant and its accompanying good faith standard, suppression was very unlikely. So officers had a strong incentive to get the warrant. But thanks to language in Herring v. United States in 2009, expanded considerably by Justice Alito’s 2011 decision in Davis v. United States, the good faith exception now applies in the warrantless context, too. We don’t know exactly how far the Court will be extending the good-faith exception in the future, but the old idea that officers would try to get warrants to get the benefit of the lower suppression standard of the good-faith exception appears to be outdated by more recent opinions joined and even authored by Justice Alito. And even without the good faith exception, in a case such as this the inevitable discovery exception may apply for the reason I noted above.

UPDATE: I have amended this a bit shortly after posting it.