The Volokh Conspiracy

Under Whren v. United States, 517 U.S. 806 (1996), the police can pull over a car based on probable cause to believe a traffic violation has occurred. Any civil traffic violation counts: If you’re driving at 36mph in a 35 mph zone, you can be lawfully pulled over. But what if the officer pulls over a car based on his belief that a violation has occurred, and it turns out that the officer has the law wrong? That is, what if you’re not violating the law, and the officer mistakenly thinks you are? And here’s where it gets interesting: What if the officer’s mistake about the law is a reasonable one?

Lower courts are deeply divided on the question, and the Supreme Court of North Carolina just entered the fray with State v. Heien, ruling by a vote of 4-3 that the Fourth Amendment permits an officer to execute a seizure based on a reasonable mistake of law. The facts of Heien are the best possible facts for the government in a case like this. An officer spotted a car with a broken rear right brake light. The officer pulled over the car, and the traffic stop eventually led to the discovery of drugs in the car. The defendant was convicted, and on appeal persuaded the North Carolina Court of Appeals to adopt a rather surprising interpretation of the traffic laws. According to a long statutory analysis from the North Carolina Court of Appeals, interpreting several archaic sections of the traffic code, it was actually legal to have one broken brake light as long as the other brake light functioned properly. The state government saw the opportunity: It accepted this interpretation of the statutes, and it petitioned the North Carolina Supreme Court only on the Fourth Amendment question of whether the stop was constitutionally reasonable even though it turned out that the officer’s belief that a broken tail light was unlawful was not correct. That is, did pulling over the car with a broken tail light violate the Fourth Amendment?

A divided North Carolina Supreme Court ruled that the stop was constitutionally reasonable. The officer had a reasonable belief as to what the traffic laws meant, the majority reasoned, and he acted reasonably. Because the Fourth Amendment requires reasonableness, this is all the Fourth Amendment requires and the resulting stop was constitutional. The dissent agrees that the officer acted reasonably in a generic sense, but it argues that we would not want to systemically allow stops of people who are not breaking the law at all based on erroneous officer understandings of what the law is. The dissent also points out that this is like an exclusionary rule case in disguise: The majority’s reasoning is akin to saying that there is a good faith exception at the remedies stage, the kind of thinking that should not infuse the court’s reasoning at the initial stage of whether a constitutional violation occurred.

This is a very interesting Fourth Amendment issue — and not an easy one, at least to me. At first blush, my sympathies tend to be with the defense here. That’s true for three reasons, which I’ll concede may be a bit idiosyncratic. First, I’ve always thought that the unstated rationale of why the courts allow a traffic stop for a non-criminal violation must be to enforce the traffic laws — it’s a sort of regulatory rationale which acts as an exception to the usual rule that cause of criminality is required to make a stop. Given that regulatory purpose, it seems sensible that the scope of the police power is based on what that law actually prohibits, not what an officer mistakenly thinks it prohibits. And it doesn’t help that the police tend to have tremendous influence on their state traffic laws: As a practical matter, if an officer can’t find a traffic violation to stop a car, he isn’t trying very hard. And if a court identifies a problem with the traffic laws as the lower court did here, the legislature is likely to fix it in the government’s favor pronto. Given that, I’m not sure why we would need a doctrine that makes room for officer errors of law.

Second, as a Criminal Law professor, I can’t help but approach the question by reference to the doctrine of mistake of law in criminal law. When a citizen makes a reasonable mistake of law as to what is criminal, the general rule is that ignorance of the law is no excuse. If a citizen reads the law and perfectly reasonably thinks his conduct is lawful, only to have a court take a surprising reading of the criminal law and say he is guilty, the courts say “enjoy your time in prison, Mr. Marrero.” And they say that for a good reason. Although it seems harsh in rare cases where the law is construed in a surprising way, we generally want citizens to approach the law with care and have an incentive to learn about it. Looking beyond that one case, it’s very hard to administer routine areas of the law if anyone has an out based on their claim to have reasonably misunderstood it. If we apply that rule to citizens facing the awesome power of the state, it seems only fair to apply the same rule to the state facing its citizens.

Third, I agree with the Heien dissent that this is basically a remedies question under the guise of substantive Fourth Amendment law. If the exclusionary rule is going to be about officer culpability, then say that there is a Fourth Amendment violation here and no exclusionary remedy. But it doesn’t make much sense to harness the same principle to determine what is a Fourth Amendment violation in the first place: If you’re going to draw a sharp rights/remedies distinction, then I think the rationale for the rights and remedies should be kept separate.

With that said, if this case goes up to the U.S. Supreme Court, I highly doubt a majority of the Court would share my initial instincts. If the U.S. Supreme Court takes this case, they will probably see this as an easy case for much of the same reason they saw Davis v. United States as an easy case: The officer acted reasonably based on the law known at the time, so the government should win. They might look at the legal question differently in a case with better facts for the defense, but the facts here would seem to make a government win particularly likely.

And finally, there’s a cynical case to be made that the ultimate outcome may not make much of a difference in the setting of traffic stops. As long as the Whren rule survives that a traffic violation alone justifies a stop, occasional ambiguities in the traffic laws are not likely to interfere much with traffic stops. If the officers can rely on reasonable mistakes of law, then the courts will allow the stops. And if the officers can’t rely on them, the police can go to the legislature and the legislature wil clarify the ambiguities in their favor. Either way, the police have the advantage in cases like this over the long haul so long as Whren is in place.

Hat tip: FourthAmendment.com.

I recently blogged about a new Fourth Amendment decision on the use of “MoocherHunter” to find the location of an unauthorized user of a wireless network. Here’s another case with a somewhat similar tool in which the facts led the District Court to grant the defendant’s motion to suppress: United States v. Broadhurst, 2012 WL 5985615 (D. Or. Nov. 28, 2012) (Mosman, J.).

In this case, an investigation into sharing of child pornography over peer-to-peer networks revealed ten different IP addresses in a particular neighborhood that was being used to share thousands of images of child porn. An investigation revealed that the ten IP addresses traced back to six residences that had unsecured wireless networks, suggesting that someone was sharing child porn by hopping on to the unsecured wireless networks in the neighborhood and using several different networks to hide the suspect’s identity. To find out who was behind the conduct, the investigators turned to The Shadow. No, not that Shadow. Rather, a hand-held device that happens to be called the Shadow:

The Shadow is a handheld device about the size of a smartphone that allows the user to observe and locate wireless access points and station devices.

To observe access points and station devices, the Shadow receives wireless radio signals within the immediate area. Access points and station devices emit these signals to facilitate Internet connections. An access point sends out a signal announcing its Internet connection, and a station device sends out a signal to locate available access points. The Shadow scans for these signals within range and displays the results on a touchscreen. The results show the detected access points and station devices and their relative signal strength. The Shadow can also display which station device is connected to a detected access point.

To locate access points and station devices, the Shadow displays the signal strength of a particular access point or station device selected by the user. This signal strength, labeled Received Signal Strength Indicator (“RSSI”), is displayed on the Shadow’s screen in the range of –60 to 6. (Ex. D at 24.) As the Shadow gets physically closer to the selected access point or station device, the signal strength increases and the RSSI displays a higher number. Thus, the Shadow allows the user to locate a particular access point or station device by displaying the access point or station device’s signal strength in real-time to the user.

The device sounds similar to Moocherhunter, except that it’s a hardware device and there is no need to get the cooperation of the owner of the unsecured wireless device.

The investigators ended up using “The Shadow” to trace the signal from the laptop that was connected to an IP address that was being used to upload and download child pornography. By walking around the neighborhood, the officers found the home, and walked up to the front lawn and towards a window, where the strength of the signal from the laptop was very strong. The agents then obtained a search warrant to search the home with the signal apparently emanating from inside, and the search recovered the computer and images of child pornography. The defendant moved to suppress, and the district court granted the suppression motion.

The court reasoned that using The Shadow was itself not a search: It did not violate a reasonable expectation of privacy so long as it was used from a public space or property that did not belong to the suspect:

[T]his case is very similar to those cases recognizing no reasonable expectation of privacy in stolen property. See United States v. Caymen, 404 F.3d 1196, 1200–01 (9th Cir.2005) (“The Fourth Amendment does not protect a defendant from a warrantless search of property that he stole, because regardless of whether he expects to maintain privacy in the contents of the stolen property, such an expectation is not one that society is prepared to accept as reasonable.”) (internal quotations and citation omitted). Here, the Shadow monitored the station device signals through the station device’s connection to unsecured networks and could not have measured the station device signal strength without this connection (Tr. [49] at 126:23–127:7, 141:8–13.) Thus, when the Shadow was used to monitor the station device signals coming from defendant’s computer in his residence, the Shadow relied on the station device’s unauthorized connection to his neighbor’s unsecured network. Because the Shadow monitored the station device signals when the station device had no authorization to be on that network, defendant cannot claim a reasonable expectation of privacy in the signals. To put it more plainly: A defendant who connects to the Internet by hijacking his neighbor’s wireless network does not have a privacy interest in the signals coming from his house that society is prepared to recognize as reasonable.

*5 Second, defendant cannot assert a reasonable expectation of privacy “in information he voluntarily turn[ed] over to third parties.” Smith v. Maryland, 442 U.S. 735, 743–44 (1979). Through the station device, defendant voluntarily sent out a signal to amplify access point signals and attach to third parties’ networks with his computer. Defendant cannot assert a reasonable expectation of privacy in signals he intentionally emitted to connect to unauthorized networks.

Third, from a practical standpoint, defendant’s argument creates inconsistent expectations of privacy based only on the means by which an individual shares child pornography files over the Internet. On the one hand, this defendant would serendipitously receive Fourth Amendment protection because he hijacked another person’s Internet connection to share child pornography files. On the other hand, another individual who uses his own Internet connection to share the same files lacks such protection, merely because the IP addresses would track back to his house. See United States v. Borowy, 595 F.3d 1045, 1047–48 (9th Cir.2010); United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir.2008). Both individuals are sharing child pornography files over the Internet starting from inside their home; the court should not recognize an expectation of privacy in one case simply because one individual uses a hijacked wireless signal. See United States v. Skinner, 690 F.3d 772, 774 (6th Cir.2012) (“When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them.”). Consequently, I conclude defendant lacked a reasonable expectation of privacy in the station device signals and therefore cannot invoke the protection of the Fourth Amendment against the general use of the Shadow.

Despite this, the officers had violated the Fourth Amendment when they had walked on to the suspect’s front lawn and approached his home. This crossed the line from “open fields” to the “curtilage,” amounting to a physical trespass of the suspect’s protected property. As a result, any evidence obtained as a fruit of the unconstitutional trespass had to be suppressed. This required Judge Mosman to excise out the unconstitutional parts of of the affidavit and ask if what was left still amounted to probable cause. It did not, Judge Mosman concluded in part because the affidavit lacked details about the investigation:

[C]onsidering the totality of the circumstances here, the information in the warrant affidavit did not create a fair probability that evidence of child pornography crimes would be found in defendant’s residence. Accordingly, all evidence obtained pursuant to the execution of the search warrant must be suppressed.

This is not to say that officers cannot obtain search warrants in these types of multiple-location investigations. They will be greatly assisted in doing so if they do not trespass on a suspect’s property. In addition, if they correctly include a more complete set of data (here, the correct photograph), and a more thorough explanation of the investigation and the relevant technology, it would allow the court to better assess probable cause. Significantly for my analysis, that was not the case here.

Yesterday, the Ninth Circuit decided an interesting new Fourth Amendment case in a sharply divided opinion with Judge Kozinski in dissent. The case is United States v. I.E.V., and I thought I would blog my thoughts on it.

First, some background. Fourth Amendment caselaw permits police officers to “frisk” a suspect in close proximity to them — that is, pat the the suspect down for weapons — when they reasonably believe that “the persons with whom [they are] dealing may be armed and presently dangerous.” Terry v. Ohio, 392 U.S. 1, 24 (1968). Importantly, the frisk has to be in response to a threat to officer safety like a gun or a knife, not for evidence of crime. Once the officer conducts the frisk, if he feels what he thinks is a weapon, he can take “strictly circumscribed” steps to disable the weapon and therefore protect himself. Minnesota v. Dickerson, 508 U.S. 366 (1993). At the same time, if he merely thinks that he has come across evidence such as drugs, he can’t frisk to find the drugs. See id. If he has probable cause to believe that he has discovered drugs on a person, he can take the drugs based on the plain view exception. Or he can make an arrest and take the drugs as a search incident to arrest. But he can’t rely on the “frisk” authority to search for and take the drugs.

That brings us to United States v. I.E.V., the new decision. Two teenage brothers drove their car up to the United States Border Patrol Checkpoint near Whetstone, Arizona, about 100 miles from the Arizona/Mexico border. A drug dog alerted to the presence of narcotics in the car. The car was directed to a second check point, and the two were asked to exit the car. They did so, and they consented to a search of the car. The drug dogs were then unable to find any drugs in the car and did not alert to any drugs on their persons. However, an officer observed that one of the brothers was acting nervous and repeatedly “touched his abdomen area.” Officers decided to frisk the two brothers for weapons.

During the frisk, the officers felt an object through one suspect’s shirt. They lifted off the suspect’s shirt and found a “brick-shaped object taped on the Defendant’s abdomen.” The then found a similar brick-shaped object taped to the other suspect’s abdomen. The opinion isn’t very clear as to exactly what happened next, but it seems that they ripped off the tape and took the brick-shaped objects, which contained marijuana. (The opinion just says that at that point the officers “seized the marijuana.”) The brothers were then charged with possessing marijuana, and they challenged the frisks as violating the Fourth Amendment.

The Ninth Circuit divided on whether the officers acted properly. The majority, Judge N.R. Smith joined by Judge Christen, concludes that the officers acted improperly and violated the Fourth Amendment because they lacked reason to think that there was a gun present as opposed to drugs. Judge Kozinski dissents, reasoning that where there may be drugs, there may be guns, justifying a frisk of the suspects for guns.

So who is right? I’d want to read the district judge’s opinion to make sure I have the facts down cold before speaking confidently on this. For that matter, I’d be interested to read the suppression hearing transcript. But based on the two opinions, at least, I find the majority’s result somewhat more persuasive. The test is whether there was evidence supporting a reasonable belief that the suspect was armed and dangerous — that is, that he had a knife or gun on his person that posed a threat to the officer’s safety. I think the initial frisk might satisfy that test, although I’d be interested to know more details about where the suspect was touching, whether he had pockets that could hold a gun there, etc. Depending on the details, which aren’t presented in the opinions, I think you could reach either result.

But even if the officer was justified in feeling through the shirt that *something* was taped to the suspect’s abdomen, the harder step to justify was subsequently removing the shirt. Under Dickerson, the shirt could be removed only based on suspicion that the item was a gun or knife, not drugs. This is the key, I think. My sense from the opinions is that the item here was pretty clearly drugs, not a gun. Drug couriers often tape their drugs to their bodies to hide the drugs and keep them safe crossing the border, but I’ve never heard of a courier taping a gun or knife to his abdomen in such circumstances. Or so it would seem to me. If others have different experiences here, I’d be interested to hear about it.

To be clear, I agree with Kozinski’s common-sense point that the scene here was pretty suspicious:

Common sense tells us that people engaged in legitimate business don’t tape bricks to their bodies. This would be true even if the encounter had been on a street corner in Pocatello, but at a checkpoint on a highway heading from the Mexican border, after a dog had alerted to possible drugs? Any officer who sent I.E.V. on his way without finding out what he was hiding under his shirt should have been fired for incompetence.

Perhaps, but it’s not clear how that is relevant under the Supreme Court’s Fourth Amendment caselaw. The Supreme Court has emphasized that the Terry frisk authority is only authority to frisk for weapons, not drugs. The officer who felt the brick through the shirt had several options. If he had probable cause that the item contained drugs, he could arrest the suspect and search him under the search incident to arrest exception — or just seize the drugs as being effectively in plain view by that point, if he had probable cause based just on feeling the item through the suspect’s shirt. If he was just suspicious, he could have asked the suspect to remove his shirt. But based on the facts as I understand them, I don’t think he could use the Terry frisk authority to remove the shirt to reveal the drugs.

Judge Kozinski’s dissent faults the majority for hinting at the subjective motivations of the officers. I’m not so sure the criticism is fair, though. Although Kozinski is right that Fourth Amendment law generally avoids relying on subjective motivations, it’s worth noting that the most directly relevant Supreme Court case, Dickerson, appeared to rely on subjective motivations in pretty similar circumstances. Here’s the key conclusion of Justice White’s opinion in Dickerson:

Although the officer was lawfully in a position to feel the lump in respondent’s pocket, because Terry entitled him to place his hands upon respondent’s jacket, the court below determined that the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was contraband only after conducting a further search, one not authorized by Terry or by any other exception to the warrant requirement.

Although hardly a model of clarity, that passage appears to rely on the officer’s subjective motivations. It emphasizes what the officer “determined” — that is, concluded, or subjectively thought — rather than what he did. Given that, I’m not sure it was wrong for the majority to rely on subjective intent here.

One last thought. In his 2010 dissent from denial of rehearing en banc in United States v. Pineda Moreno, a Fourth Amendment case on privacy in driveways, Judge Kozinski memorably slammed the majority for being out of touch in favoring a rule that protected privacy in gated communities where rich people like judges live but in the open driveways of everyone else:

When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking device to it while you sleep. But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. The panel’s breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.

Kozinski also suggests that the majority judges are out of touch in I.E.V.:

It’s easy enough, sitting safely in our chambers, protected by U.S. Marshals with guns and dogs, surrounded by concrete barriers and security cameras, to say that officers in the field had no cause to fear for their safety. But if we’d been there when I.E.V. and his brother pulled up in their car, heard the police dog alert and seen one of the suspects fidget like he was reaching for a weapon, I’d have dived for cover into the nearest ditch, and my guess is I wouldn’t have been the first one there.

Anyway, it’s an interesting case. For a similar kind of dispute that I blogged about five years ago, see the D.C. Circuit’s panel and en banc opinion in United States v. Askew, aka, The Zipper Case: My posts on that are here and here.

Thanks to How Appealing for the link.

In United States v. Stanley, 2012 WL 5512987 (W.D.Pa. Nov. 14, 2012) (Conti, J.), the district court evaluated a novel Fourth Amendment question: Does tracing the location of a user of an unsecured wireless network constitute a Fourth Amendment search? The court’s answer: No.

In this case, a Pennsylvania state police officer investigating the distribution of child pornography over peer-to-peer software learned that a computer at a particular IP address was sharing images of child pornography. The investigator, Erdley, obtained a search warrant to search the home associated with the IP address. The search was unsuccessful, however, and Erdley concluded that someone nearby was using the wireless connection from the home that had been left unsecured. With the consent of the homeowner, Kozikowski, Erdley used a software program called “Moocherhunter” to find the physical location of the individual who was accessing the network. Moocherhunter works by measuring the distance between the wireless router and the computer connecting to it: By moving the antenna of the wireless router, and knowing the MAC address of the computer connected to the wireless router, Erdley was able to trace the location of the computer connecting to the wireless router to a specific apartment. Erdley then obtained a search warrant and searched the apartment, finding child pornography on the computer of the defendant, Richard Stanley.

The District Court ruled that use of Moocherhunter was not a search under Smith v. Maryland, 442 U.S. 735 (1979):

Based upon Smith‘s rationale, the court finds Stanley did not have a legitimate expectation of privacy in the wireless signal he caused to emanate from his computer to the Kozikowski wireless router or in the signal being sent from the router back to his computer, and therefore, Erdely’s use of Moocherhunter™ did not constitute a search in violation of the Fourth Amendment. In Smith, the pen register was used to record the telephone numbers people voluntarily dialed and thus, conveyed, to the telephone company by monitoring electrical impulses caused when the dial on the telephone was released. Here, Moocherhunter™ monitored the strength of a signal that Stanley voluntarily caused to send from his computer to Kozikowski’s wireless router and to receive a signal back from the wireless router in order to gain unauthorized access to Kozikowski’s internet connection. In both cases, the party seeking suppression of evidence assumed the risk that information disclosed to a third party may be turned over to the police. Notably, Moocherhunter™, like the pen register, did not reveal the contents of the communications; it only revealed that communications were taking place.

The court finds that Stanley did not have a reasonable expectation of privacy in the wireless signal he caused to emanate from his computer to Kozikowski’s wireless router or the wireless signal he received from Kozikowski’s wireless router in order to connect to the internet. The information logged on that wireless router was accessible to Kozikowski and through his consent, to Erdely. This information showed the private IP address of Stanley’s computer. Stanley, therefore, could have no reasonable expectation of privacy in the signal he was sending to or receiving from Kozikowski’s wireless router in order to connect to the internet.

Stanley argued that Moocherhunter was like the thermal imager in Kyllo v. United States, 533 U.S. 27 (2001), but the district court disagreed:

Stanley argues that Moocherhunter™ is a technology that is not in general public use and was used to discover that a computer was located inside of Stanley’s home, and therefore, Erdely’s use of Moocherhunter ™ constituted a violation of his Fourth Amendment rights.

Kyllo, however, is distinguishable from this case, Smith, and its progeny. First, in Smith and this case, the defendant conveyed information directly to third parties in order to facilitate communication-a telephone call in Smith and a signal to connect to the internet in this case. In Kyllo, although the defendant caused the heat by using high-intensity lamps, he did not send it to a third party and to the extent he could, he contained the heat in his garage. InSmith, the defendant conveyed the telephone numbers directly to the telephone company. When subscribing to the internet, people provide personal information such as their addresses, birthdates, and billing information directly to their ISPs. When browsing the internet, people convey their IP addresses directly to the websites they wish to visit. It follows that there is no reasonable expectation of privacy in this information because it was purposefully conveyed to a third party.

[FN] The government’s use of the technology further distinguishes this case from Kyllo. In Kyllo, the government agents sat in front of the petitioner’s house and pointed the thermal-imaging device right at the house. Those agents knew the information they received would come from the petitioner’s house because that was the exact location they were searching. Erdely, however, started his investigation with Kozikowski’s wireless router inside Kozikowski’s home. He followed the signal, which was sent by Stanley, outside Kozikowski’s home and did not know where it would lead. But-for the information Stanley voluntarily sent to Kozikowski’s wireless router, i.e. the signal which caused the router to log his IP address, the 95 MAC address, and which ports he was accessing, Erdely could not have traced the signal from Kozikowski’s wireless router to the sidewalk in front of Stanley’s home. Stanley conveyed the information to a third party, thus exposing himself to the risk that it may be disclosed to the police.

I think that’s correct under Smith. And more broadly, it’s a pretty interesting set of facts.

I have just posted a new draft paper, The Curious History of Fourth Amendment Searches, which is forthcoming in the 2013 issue of the Supreme Court Review. Here’s the abstract:

In United States v. Jones, 132 S.Ct. 945 (2012), the Supreme Court restored the trespass test of Fourth Amendment law: Any government conduct that is a trespass onto persons, houses, papers, or effects is a Fourth Amendment ‘search.’ According to the Court, the trespass test had controlled the search inquiry before the reasonable expectation of privacy test was introduced in Katz v. United States, 389 U.S. 347 (1967). Although Katz had rejected the trespass test, Jones restored it. This essay examines the history of the Fourth Amendment search doctrine and reaches the surprising conclusion that the trespass test never existed. Pre-Katz decisions did not adopt a trespass test, and instead grappled with many of the same questions that the Court has focused on when applying the reasonable expectation of privacy test. The idea that trespass controlled before Katz turns out to be a myth of the Katz Court: Katz mischaracterized Fourth Amendment history to justify a break from prior precedent. Jones thus restores a test that never actually existed. The essay concludes by considering both the doctrinal and theoretical implications of the surprising history of the Fourth Amendment search doctrine.

Comments welcome, as always.

I’m writing a law review article that has a discussion of the famous English case of Entick v. Carrington (1765), which was influential in inspiring the adoption of the Fourth Amendment. But I have a problem that I’m hoping readers might be able to solve. Modern citations to Entick generally cite two different sources: The English Reports and Howell’s State Trials. If you look carefully, it turns out that the two versions are different in some significant ways. This isn’t that surprising: In the 18th century some decisions were only delivered orally, and different reporters would publish different accounts of them. For the article I am writing, I want to figure out which version or versions of Entick might have been known in the Colonies and therefore could have helped inform the original understanding of the Fourth Amendment.

One thought was to look at how Entick was cited in the 18th century in judicial opinions. So I turned to the allcases-old Westlaw database, which has some coverage (not perfect coverage, but at least some coverage) of the period. The case was first cited in opinions that made it into the database in State v. Willingborough Road, 1 N.J.L. 128 (N.J. 1792), but without a citation to a reporter. From 1800 to 1840, there are about a dozen citations to Entick that make it into the database. But they mostly cite to another reporter: The citations were to “2 Wils. 275,” a reference to Mr. Serjeant Wilson’s Reports. The first Entick citation to State Trials seems to be to a volume published before Howell had his name on the series: Bell v. Clapp, 10 Johns. 263, 6 Am.Dec. 339, (N.Y.Sup. 1813) has an Entick citation to both “2 Wils. 275″ and “11 St. Tr. 313.” Wikipedia explains the State Trial reports as follows:

The first collection of accounts of state trials was published in 1719 in four volumes. Although without an editor’s name, it appears that Thomas Salmon (1679–1767), an historical and geographical writer, was responsible for the collection. A second edition, increased to six volumes, under the editorship of Sollom Emlyn (1697–1754), appeared in 1730. This edition contained a lengthy preface critically surveying the condition of English law at the time.
A third edition appeared in 1742, in eight volumes, the seventh and eighth volumes having been added in 1835. Ninth and tenth volumes were added in 1766, and a fourth edition, comprising ten volumes, with the trials arranged chronologically, was published the same year. A fifth edition, originated by William Cobbett, but edited by Thomas Bayly Howell (1768–1815) and known as Cobbett’s Complete Collection of State Trials, was published between 1809 and 1826. This edition is in thirty-three volumes; twenty-one of them, giving the more important state trials down to 1781, were edited by TB Howell, and the remaining volumes, bringing the trials down to 1820, by his son Thomas Jones Howell (d. 1858).

Starting in 1841, the Howell’s State Trials citations begin to take over, and they dominate U.S. judicial citations from the 1850s through the 1960s. The earlier reference to “11 St. Tr. 313″ is quickly replaced by the later citation to 19 Howell’s State Trials 1029. That version of Entick that appears in Howell’s State Trials has the following explanation of its source:

The State of the case, with the arguments of the counsel, is taken from Mr. Serjeant Wilson’s Reports, 2 Wils. 275. But instead of his short note of the Judgement of the Court, the Editor has the pleasing satisfaction to present to the reader the Judgment itself at length, as delivered by the Lord Chief Justice of the Common-Pleas from written notes. It was not without some difficulty, that the copy of this Judgement was obtained by the Editor. He has reason to believe, that the original, most excellent and most valuable as its contents are, was not deemed worthy of preservation by its author, but was actually committed to the flames. Fortunately, the Editor remembered to have formerly seen a copy of the Judgment in the hands of a friend; and upon application to him, it was immediately obtained, with liberty to the Editor to make use of it at his discretion. Before, however, he presumed to consult his own wishes in the use, the Editor took care to convince himself, both that the copy was authentic, and that the introduction of it into this collection would not give offence. Indeed, as to the authenticity of the Judgment, except in some trifling inaccuracies, the probable effect of careless transcribing, a first reading left the Editor’s mind without a doubt on the subject. But it was a respectful delicacy due to the noble lord by whom the Judgment was delivered, not to publish it, without first endeavouring to know, whether such a step was likely to be displeasing to his lordship; and though from the want of any authority from him, the Editor exposes himself to some risk of disapprobation, yet his precautions to guard against it, with the disinterestedness of his motives, will, he is confident, if ever it should become necessary to explain the circumstances to his lordship, he received as a very adequate apology for the liberty thus hazarded. Hargrave.

In contrast to citations to Howell, the citations to the English Reports version start appearing only late. The first Entick citation I found was in 1962 in New York state court. See Application of Beatty, 33 Misc.2d 1096, 228 N.Y.S.2d 955, (N.Y.Sup. 1962).

So for most of U.S. History, the Howell’s State Trials version was dominant, but I don’t know which version was seen in the colonies in the late 18th century. Or if any formal version was seen, for that matter. Perhaps it was only read about in the newspapers and pamphlets of the era, and I don’t know exactly how it was reported in newspapers in the colonies leading up to the ratification of the Fourth Amendment. Or perhaps the Wilson’s Reports version was the one that was best known, with the catch that I don’t know how that version reported the judgment.

Any ideas?

My earlier post on how the Wiretap Act applies to wireless networks triggered a lot of comments on how the Fourth Amendment might apply, so I thought I would have a post specifically on the matter. Here’s the question: Does governmental interception and analysis of the contents of a person’s wi-fi traffic constitute a Fourth Amendment search? And does it depend on whether the traffic is encrypted or unencrypted?

The answer turns out to be surprisingly murky. Because the Wiretap Act has been thought to protect wireless networks, the Fourth Amendment issue has not come up: There’s a surprising lack of caselaw on it. Second, there are plausible arguments on either side of the debate both for encrypted and unencrypted transmissions. So I wanted to run through the arguments and then ask which side readers find more persuasive. I’ll start with unencrypted communications and then turn to encrypted communications.

I. Unencrypted Communications

Imagine a criminal suspect uses an unencrypted wireless access point to send a communication to a co-conspirator. Maybe the suspect is using a wireless network at a hotel or a coffee shop, and he sends an e-mail indicating his involvement in the crime. A government agent is watching the suspect, however, and is sniffing all of the traffic over the wireless access point. Does reading the suspect’s e-mail broadcast over the network constitute a search?

There are two ways to look at the question. One way is to focus on how the technology actually works. The suspect may think his communications are private, but the network is actually broadcasting them to others: It’s just that the others’ computers are normally configured to ignore the broadcast. If you focus on how the network works, then you probably would conclude that the communications are not private and the sniffing is not a search. Notably, that is how courts ruled when they were presented with the analogous question in the context of cordless telephones. As I wrote in a Note in my computer crime law casebook:

In the 1980s, companies began offering cordless telephones for sale to the public. Cordless telephones work by broadcasting FM radio signals between the base of the phone and the handset. Each phone has two radio transmitters that work at the same time: the base transmits the incoming call signal to the handset, and the handset transmits the outgoing call signal to the base. Before the mid–1990s, cordless phones generally used analog FM signals that were easy to intercept. Government agents would occasionally use widely available FM radio scanners to listen in on the cordless telephone calls of suspects without a warrant. Courts that have addressed this issue have rejected claims of Fourth Amendment protection in the contents of cordless telephone calls. Because cordless-phone intercepting devices merely pick up a signal that has been “broadcast over the radio waves to all who wish to overhear,” the interception was held not to violate any reasonable expectation of privacy. McKamey v. Roach, 55 F.3d 1236, 1239–40 (6th Cir. 1995). See also Tyler v. Berodt, 877 F.2d 705, 707 (8th Cir. 1989); Price v. Turner, 260 F.3d 1144, 1149 (9th Cir. 2001). Courts reached the same result when the suspect was using a traditional landline telephone and happened to engage in conversation with someone who was using a cord-less phone. See United States v. McNulty, 47 F.3d 100, 104–106 (4th Cir. 1995).

That’s one plausible view. An alternative plausible view is to focus on the social understanding of wireless networks. Users of unsecured wireless networks may recognize the risk that their communications will be monitored, but for the most part they still consider their communications over wireless networks to be private in nature. And the mere risk of observation doesn’t eliminate a reasonable expectation of privacy: A person still has a reasonable expectation of privacy in their home if they live in a bad neighborhood with frequent break-ins and leave their doors closed but unlocked. Those common social understandings are changing over time, to be sure. In the last five years or so, unsecured networks have gone from common to uncommon. But most people still consider their communications over unsecured wireless networks to be private. So which governs: The details of how the network works or prevailing social understandings?

II. Encrypted Communications

Now imagine the same case, except the wi-fi access point is password-protected and the communications are encrypted. The contents are scrambled into ciphertext during transmission, so any effort to collect the communications only reveals the gibberish of ciphertext. The government agent collects the scrambled ciphertext and takes it back to the government’s lab. Back at the lab, the agent figures out a way to break the encryption and convert the ciphertext into plain text and read the communications. Let’s ask the question again: Does this constitute a search? Did the agent violate the suspect’s reasonable expectation of privacy?

Once again, it depends on whether you look at how the technology works or social understandings. If you focus on social understandings, the prevailing social understanding today is that using encryption is a good way of making something private. We think of encryption as something like a lock, so locking the communication is like keeping it private using a lock. If you think social understandings should govern the Fourth Amendment test, then it seems that breaking the encryption should be considered a search.

But again, you reach a different result if you focus on how the technology works. Decrypting ciphertext may seem like unlocking a locked communication, but the ciphertext is actually already exposed: Decryption is a matter of analyzing that which has been already exposed rather than bringing new things into view. From that perspective, decryption is not a search. I made this argument in an early article that I think I still find persuasive: The Fourth Amendment in Cyberspace: Can Encryption Create a Reasonable Expectation of Privacy?, 33 Conn. L. Rev. 503 (2001). Readers are invited to read the whole article to understand the full argument (it’s relatively short), but here’s an excerpt:

When the government obtains ciphertext that can only be decrypted with an individual’s private key, that individual enjoys an excellent chance that the government will be unable to discover the key and decrypt the communication. However, the Fourth Amendment does not protect the individual if the government decides to devote its resources to decrypting the communication and manages to succeed. From a rights-based perspective, the individual has no enforceable legal means of blocking the government from attempting to translate the ciphertext into plaintext. She has no right to stop government agents from examining the ciphertext and trying to think of patterns that might provide the key to translating the ciphertext into plaintext. She cannot obtain a court injunction preventing the government from examining the ciphertext legally in its possession. Nor does the fact that the government would try to decrypt ciphertext using a computer make any difference: the question is what the government does, not what technologies it uses to do it. Thus, the government is free to try to crack the code if it wishes: the fact that it will probably fail does not create Fourth Amendment protection.

Despite the high-tech atmospherics, decryption of Internet communications without a warrant hardly presents a novel question from the perspective of the rights-based Fourth Amendment. A rational expectation that law enforcement will be unable to decrypt ciphertext is just like a burglar’s rational expectation that he can burglarize an unoccupied home without being detected, a husband’s rational expectation that his wife will not consent to a search of their bedroom, or a drug smuggler’s expectation that no one will find narcotics that he has stored in a hidden compartment. The odds may be in his favor, but the Fourth Amendment does not protect him if he later turns out to be wrong. The Fourth Amendment simply does not recognize such expectations as “legitimate.” Decoding communications by taping together shreds, finding someone who speaks a foreign language, locating someone who has an encryption “key,” or cracking the encryption using brute force methods merely affects the government’s understanding of a communication, not the government’s access to it. If the government obtains communications in a form that it does not understand, the Fourth Amendment does not require law enforcement to obtain a warrant before translating the documents into understandable English. Accordingly, decryption cannot violate the Fourth Amendment.

From this perspective, the lock and key analogy is flawed because it acts at the level of metaphor rather than technology. Also, it raises the strange question of how strong the encryption must be to generate Fourth Amendment rights:

In the real world, of course, the statistical reasonableness of an expectation of privacy in an encrypted communication is a function of many factors, including the time allowed to decrypt it, the number of people trying to decrypt it, and the resources at their disposal. For example, a person would reasonably expect that a 56-bit encryption scheme is unbreakable if law enforcement has ten minutes and a Radio Shack TRS-80 Model III computer to break the code, but could not reasonably expect that the scheme would be unbreakable if law enforcement has ten years and a dozen Cray supercomputers to crack the code. Would that mean law enforcement needs a warrant to crack the code with a TRS-80, but can crack it without a warrant using supercomputers? Or that law enforcement would need a warrant to crack encryption in a day, but would not need a warrant if it waited ten years? Or that law enforcement would not need a warrant to crack encryption in a high-profile case that would obviously merit the allocation of significant law enforcement resources, but that a warrant would be required in a low-profile case? Such results would be extremely strange, but appear unavoidable if we accept the view that encryption acts as a “lock” that can create a reasonable expectation of privacy.

So which governs: The social understanding or the technology? And combining the two cases, encrypted and unencrypted communications, is there a consistent answer as to whether the Fourth Amendment test should focus on social understanding or technology? Some will want to focus on technology in one case and social understanding in another; others will want to focus on technology in both cases or social understanding in both cases.

Which side is right?

On Tuesday, DOJ filed a brief in the United States District Court for the District of Columbia in United States v. Antoine Jones, on remand from the Supreme Court, on the question of whether cell-site location information is protected under the Fourth Amendment. It’s a good brief, I think, and I was particularly intrigued by the appendices. The appendices included two recent unpublished federal district court decisions on Fourth Amendment protection for cell-site data. To my knowledge, neither opinion has been public before — or if they were public, they are not on Westlaw. Here they are for those interested:

1) United States v. Gordon (D.D.C. February 2012) (Urbina, J.) (ruling, shortly after the Supreme Court’s decision in Jones, that cell-site information is not protected by the Fourth Amendment because Smith v. Maryland is controlling)

2) In re Application of the United States (D.D.C. October 2011) (Lamberth, J.) (redacted version of ruling filed under seal) (ruling after the D.C. Circuit’s decision in Maynard but before Jones that cell-site information is not protected under Smith v. Maryland, and distinguishing Maynard on the ground that cell-site data is much less revealing and detailed about a person’s life than is GPS information).

I recently blogged about United States v. Skinner, the new Sixth Circuit decision concluding that the Fourth Amendment does not protect location information obtained from a cell phone. Skinner has been getting a lot of attention in the blogosphere, in part because the facts are so vague, so decided to take a closer look at the case to see what I could learn about the facts in dispute.

Here’s what I learned. First, here’s the first of the two court orders that the government obtained to compel the phone company to reveal location information. It’s one of the “hybrid” orders that DOJ has tried to use (or at least was using as of 2006, the date of the order) that combines several statutory authorities at once — pen trap, 2703(d), subpoena, etc. Putting aside the open question of the legality of such hybrid orders under statutory laws, the important part for Fourth Amendment purposes is what the court order allows the government to do in terms of location information. The order requires the phone company to provide the government with the following:

(This image may not be sizing correctly for some browsers.  If you’re not seeing well, you can view it here.)  As you can see, the order authorizes the government to get both cell-site and GPS information from the phone. So which did the government use when it “pinged” the phone? It’s somewhat hard to tell, because the magistrate judge’s Report and Recommendation refers to both GPS and cell-site and doesn’t focus much on the distinction. At the same time, the fact section of the magistrate judge’s Report and Recommendation refers primarily to GPS information, not cell-site data. Here’s the critical section, available at United States v. Skinner, 2007 WL 1556596 (E.D.Tenn. 2007):

Agent Lewis was given authorization to ping [FN9] the phone and ascertain its GPS location. He testified that he knew the phone had a GPS device installed in it based on the type of phones that allow minutes to be loaded onto them. Only a few models of telephones are available to those who opt not to subscribe to a wireless service but instead buy a phone which requires minutes to be loaded. After contacting the phone carrier, Agent Lewis learned the specifications for this phone and that it had GPS capabilities.

FN9. “Pinging” a cell phone garners the GPS or triangulation information. [Doc. 71-Tr. 74]. Technically, the phone company does the actual pinging, but the phone company will ping a phone at the government’s ordered request. [Doc. 71-Tr. 75]]

Once Agent Lewis pinged the phone, he discovered that it was in North Carolina. Agent Lewis testified that he immediately realized he had misunderstood previous intercepts of West’s conversations. He now realized that the “James Westwood” phone was the phone that West used to call Big Foot, not the phone in Big Foot’s possession used to call West. To ascertain the number of the phone being used by Big Foot, Agent Lewis called the phone company to get the toll records of all numbers dialed by the “James Westwood” phone. There were several calls, but all were to the help-line and to one other number, (520) 869-6820. The (520) 869-6820 number was registered to “Tim Johnson” and, based on the process of elimination, the agents knew it was the phone being used by Big Foot.

On July 13, 2007, Knoxville agents sought a new order, authorizing the agents to track the “Tim Johnson” phone. Though the actual affiant was Agent Davis, Agent Lewis testified they were working “hand in hand” throughout the investigation and application process. [Doc. 71-Tr. 61]. Agent Lewis also testified that he always relies, and relied in this specific instance, on the Assistant United States Attorneys to provide the correct legal bases to support the applications and affidavits. The agents obtained the order sought.

Acting on the authority granted by the Court, the agents obtained GPS information from the phone company. From this information, the agents learned that the “Tim Johnson” phone was in Arizona. From a wire intercept, they learned that the last load of marijuana had been transferred to the RV on July 13. They also learned that Big Foot was not going to begin his cross-country journey until July 14. The agents believed that, once loaded, the caravan would transport the marijuana to Tennessee, but through a wire intercept they learned that Big Foot was actually going to take the marijuana to his home. Because the agents did not know the exact location of Big Foot’s residence, and thus far did not know Big Foot’s identity, they decided their best course of action was to locate the vehicle and apprehend it on its way east.

The agents did not have anyone following the vehicles and conducting visual surveillance. Therefore, the Knoxville agents watched where the phone was located via GPS tracking with the goal of ascertaining the location of the couriers, Big Foot and his son. They learned that the phone was traveling on an interstate, I-40, on July 15 and moving east across Texas. While watching the phone travel, the officers intercepted a phone call. Agent Lewis testified that at 10:30 P.M. there was a call between, he believed, West and Apodaca, “and Apodaca was wanting to know the progress of the load of marijuana and where it was. And West made the statement that, ‘I just spoke to him and he told me that he’s going to be driving for another couple of hours before he rests.’ ” [Doc. 71-Tr. 50]. At that point, the agents realized the courier would be stationary soon and began to narrow their focus to which Texas office they needed to work with to apprehend the courier. The agents determined that the Lubbock, Texas DEA office would be the closest to where the RV was likely to stop for the night.

At around 2 A.M., the Knoxville agents noticed that an identical GPS reading was appearing. They realized that what West had said earlier was coming true; Big Foot was taking a rest for at least some period of time. Using the latitude and longitude data provided from the telephone company, the agents determined that the vehicle was located at a truck stop near Abilene, Texas.

As I read this, it seems to me that the location monitoring was obtained by ordering the cell-phone provider to contact the phone and have the phone send on its GPS coordinates, not by obtaining cell-site location information that the cell provider was collecting in the ordinary course of business. If that’s right, I think it is still correct that the monitoring did not violate a reasonable expectation of privacy under United States v. Knotts, the radio beeper case, at least so long as the monitoring only revealed the location of the phone on public streets (which appears to be the case). At the same time, I think the legality of the monitoring has to be justified under Knotts as limited by Karo rather than under the broader third party doctrine cases like Smith v. Maryland that the Sixth Circuit at times invoked in support of its opinion.

For more, here’s the government’s appellate brief in Skinner; here are the defense opening briefs and reply brief.

Today the U.S. Court of Appeals for the Sixth Circuit decided United States v. Sharp, a dog-sniff case. Here’s the court’s summary:

It is well-settled that a dog’s sniff around the exterior of a car is not a search under the Fourth Amendment. Defendant appeals the district court’s denial of his motion to suppress because a narcotics dog jumped into his car and sniffed inside the car before “alerting” to the presence of narcotics. The canine’s jump and subsequent sniff inside the vehicle was not a search in violation of the Fourth Amendment because the jump was instinctive and not the product of police encouragement. Therefore, we AFFIRM.

So reports ABC News:

Police in Aurora, Colo., searching for suspected bank robbers stopped every car at an intersection, handcuffed all the adults and searched the cars, one of which they believed was carrying the suspect.

Police said they had received what they called a “reliable” tip that the culprit in an armed robbery at a Wells Fargo bank committed earlier was stopped at the red light.

“We didn’t have a description, didn’t know race or gender or anything, so a split-second decision was made to stop all the cars at that intersection, and search for the armed robber,” Aurora police Officer Frank Fania told ABC News....

So — if the story is correct — the police stopped 19 cars, handcuffed all the adult drivers and passengers, asked them “for permission to search the car,” and then searched the cars once they all “granted permission.” Once nothing was found in each car, the drivers and passengers of the car were unhandcuffed, but apparently some were handcuffed for over an hour and a half, since that’s how long the search lasted. Eventually, when they searched the last car, they found the suspect and let everyone else leave.

I’m not a Fourth Amendment expert, but I’m pretty sure this is unconstitutional. Handcuffing someone generally requires probable cause to believe that they are guilty of a crime, or — in the context of a brief investigative stop — “particularized suspicion” to believe that the person is dangerous to the investigators. (See, e.g., Manzanares v. Higdon (10th Cir. 2009).) The mere fact that someone is present at the place where a criminal may be present can’t provide such probable cause. As the Court held in Ybarra v. Illinois (1979), rejecting the argument that a search warrant that authorized the search of a tavern, based on probable cause that evidence of crime would be found in the tavern, also authorized the search of tavern patrons,

A person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seizure another or to search the premises where the person may happen to be....

Each patron who walked into the Aurora Tap Tavern on March 1, 1976, was clothed with constitutional protection against an unreasonable search or an unreasonable seizure. That individualized protection was separate and distinct from the Fourth and Fourteenth Amendment protection possessed by the proprietor of the tavern or by “Greg.” Although the search warrant, issued upon probable cause, gave the officers authority to search the premises and to search “Greg,” it gave them no authority whatever to invade the constitutional protections possessed individually by the tavern’s customers.

Notwithstanding the absence of probable cause to search Ybarra, the State argues that the action of the police in searching him and seizing what was found in his pocket was nonetheless constitutionally permissible. We are asked to find that the first patdown search of Ybarra constituted a reasonable frisk for weapons under the doctrine of Terry v. Ohio, 392 U.S. 1. If this finding is made, it is then possible to conclude, the State argues, that the second search of Ybarra was constitutionally justified. The argument is that the patdown yielded probable cause to believe that Ybarra was carrying narcotics, and that this probable cause constitutionally supported the second search, no warrant being required in light of the exigencies of the situation coupled with the ease with which Ybarra could have disposed of the illegal substance.

We are unable to take even the first step required by this argument. The initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a patdown of a person for weapons.

What is true for a search pursuant to a warrant is likewise true for warrantless seizures, such as the ones that occurred here. And even if the 5% chance that any particular driver was an armed and dangerous bank robber (1/19, even assuming that the tip was seen as having a 100% chance of being accurate) sufficed to provide enough “individualized suspicion” for a brief investigatory stop — perhaps, depending on the circumstances, including a patdown for weapons — I don’t think it would justify keeping all the innocent people handcuffed for an hour and a half.

It therefore sounds to me like the police might be facing 19 lawsuits (one in which the jury might not be that sympathetic to the plaintiff, and 18 in which they will likely be much more sympathetic), as well as one likely pretty solid suppression-of-evidence motion. I should hope that the police department and its elected superiors will also face some political blowback. Protecting the public from armed bank robbers is certainly very important; but handcuffing dozens of innocent people — in a situation where it was certain that the great bulk of the people were indeed innocent — for over an hour as part of this sort of blanket seizure strikes me as much too high a price to pay for this sort of law enforcement.

Thanks to Dan Schmutter for the pointer.

UPDATE: I added the “if the story is correct” after first posting it; I have no reason to doubt the story other than the general risk that the media will report things incorrectly, and I assume that our readers already take that general risk into account, when I’m blogging (of necessity) based on media accounts rather than original documents. But an extra reminder of this risk of media error never hurts, so I thought I’d add it.

The case is United States v. Metter, — F.Supp.2d —, 2012 WL 1744251 (E.D.N.Y. May 17, 2012), by District Judge Dora Irizarry. The government obtained three different warrants to search and seize computers in a massive securities fraud action. One warant was to seize computers from a business; another warrant was to seize computers from a home; and a third was to obtain the contents of an e-maul account from an ISP. The government executed the warrants, and seized 61 computers from the business, 4 computers from the home, and the contents of the e-mails from the ISP. The first two warrants also authorized the retrieval of some paper documents that were found. The government promptly made copies of the electronic files from the 65 seized computers, and then returned the original computers to their respective owners. There were privileged materials on some of the computers, and the government did not complete the forensic process of searching all the copies of the computers pursuant to a “taint team” by 15 months after the search occurred. Exactly what the government did do during the 15-month window is pretty uncertain from the opinion. Searching computers can take a lot of time, and the opinion confusingly says both that the government didn’t “review” the files and that the government claims that that it did. The defense moved to suppress whatever evidence might be found on the computers based on the government’s failure to conduct the forensic process in the 15 month window. Held: All of the electronic evidence from all three warrants is suppressed in its entirety. The analysis:

The Court recognizes that under current law there is no established upper limit as to when the government must review seized electronic data to determine whether the evidence seized falls within the scope of a warrant. See, e.g., Mutschelknaus, 564 F.Supp.2d at 1076 (“Neither Fed.R.Crim.P. 41 nor the Fourth Amendment provides for a specific time limit in which a computer may undergo a government forensic examination after it has been seized pursuant to a search warrant.”). However, the Fourth Amendment requires the government to complete its review, i.e., execute the warrant, within a “reasonable” period of time. Numerous cases hold that a delay of several months between the seizure of electronic evidence and the completion of the government’s review of that evidence as to whether it falls within the scope of the warrant is reasonable. See id. at 1076–77 (finding a two-month delay reasonable); see also Burns, 2008 WL 4542990, at *8–9 (finding a ten-month delay for completion of the government’s review reasonable).

The parties have not provided the Court with any authority, nor has the Court found any, indicating that the government may seize and image electronic data and then retain that data with no plans whatsoever to begin review of that data to determine whether any irrelevant, personal information was improperly seized. The government’s blatant disregard for its responsibility in this case is unacceptable and unreasonable. See United States v. Debbi, 244 F.Supp.2d 235, 237–38 (S.D.N.Y.2003) (finding a Fourth Amendment violation in the search, seizure, and retention of seven boxes of documents from the defendant’s home, which included “personal and religious files, general correspondence, [and] family financial records,” when “no meaningful attempt” was made to separate and retain only the items the warrant permitted to be seized). The government contends that Debbi is inapposite because, in that case, the government retained original paper documents, whereas, in this case, the government returned the original electronic documents and equipment and retained only the imaged electronic documents. The Court disagrees. It is a distinction without a difference. The government’s retention of all imaged electronic documents, including personal emails, without any review whatsoever to determine not only their relevance to this case, but also to determine whether any recognized legal privileges attached to them, is unreasonable and disturbing.

. . .
The Court has not reached this conclusion lightly. However, the Court cannot, in the interest of justice and fairness, permit the government to ignore its obligations. Otherwise, the Fourth Amendment would lose all force and meaning in the digital era and citizens will have no recourse as to the unlawful seizure of information that falls outside the scope of a search warrant and its subsequent dissemination. Accordingly, Metter’s motion to suppress is granted. This conclusion is limited to the electronic evidence seized and imaged pursuant to the Metter Home Search Warrant, Office Search Warrant, and Email Search Warrant and does not include the paper documents and currency seized pursuant to those warrants.

It sounds like Judge Irizarry was really annoyed by the Government’s conduct. At the same time, I have trouble understanding exactly what Fourth Amendment principle Judge Irizarry thinks was violated here. She seems to be assuming that the Fourth Amendment ensures a right to the privacy of information seized pursuant to a search warrant if the information seized is not within the scope of the warrant. The idea seems to be that the government needs to complete its review of seized information quickly so the data outside the scope of the warrant can be taken outside the government’s reach — kind of a duty to separate the digital wheat from the digital chaff in a reasonable period of time, even if the government has warrants and the owners have their computers back. The assumption seems to be that evidence outside the scope of the warrant will be destroyed or made unavailable to the government after that search is completed, so the government needs to complete the forensic process quickly to enable that to happen. We saw some of this thinking in Judge Kozinski’s Compehrensive Drug Testing opinion, although it’s not generally found in existing Fourth Amendment caselaw. (It’s not clear if Judge Kozinski was trying to apply the Fourth Amendment, some other legal rule, or was just announcing new rules as some sort of advisory opinion.) Anyway, it will be interesting to see how this goes: This seems like the kind of case that would merit an interlocutory appeal, and I’m not sure the Second Circuit would look at this the same way.

Hat tip: Cybercrime Review.

This morning the Supreme Court accepted certiorari in Clapper v. Amnesty International USA, which presents the question whether journalists and human rights organizations have standing to challenge the constitutionality of electronic surveillance of international communications without direct evidence their communications have been surveilled. In this case, the U.S. Court of Appeals for the Second Circuit held standing could be claimed because the plaintiffs had a reasonable fear of surveillance and undertook “costly and burdensome measures” to protect the confidentiality of their communications. Unsurprisingly, the SG’s office filed a cert petition. Because this decision created a circuit split with the U.S. Court of Appeals for the Sixth Circuit, a cert grant was virtually assured.

Thus far, the Roberts Court has stood pat on standing, neither raising nor lowering the hurdles to Article III standing. In this case, it will be interesting to see whether this trend continues.

Orin also blogged on this case here and here.

Arnzen v. Palmer (N.D. Iowa Apr. 12, 2012) deals with an interesting and unusual questions: To what extent, if any, does the Fourth Amendment restrict searches in civil commitment units for sex offenders?

After sex offenders serve out their prison term, they may be detained — often indefinitely — if a court is satisfied that there’s enough evidence that a “mental abnormality” or “mental disorder” makes them continuing threats to others. This is an extension of the traditional state power to lock people up when they are insane in a way that makes them dangerous to others, even if those people have finished their criminal sentence, or have been found not guilty of a crime by reason of insanity. In principle, the dangerously insane can be locked up even before they commit a crime, or something that would be a crime but for their being insane, but the sexual offender commitment statutes are generally limited to people who have already committed a crime. On the other hand, the sexual offender commitment statutes generally require a lesser showing of mental illness than do the statutes for committing the dangerously insane. In either case, both the committed dangerously insane and the committed post-sentence sex offenders are not being imprisoned as criminals. But they are still being imprisoned.

The question, then, is what Fourth Amendment rights against unreasonable searches apply to such civilly committed people. While a sex offender is in prison, serving out his criminal sentence, his protection against searches is extremely minor, because pretty much any search of convicted criminals that’s at all related to penological purposes is seen as permissible in prison. Should the same apply to the civilly committed who are no longer serving their criminal sentence?

The Magistrate Judge’s Report and Recommendation in Arnzen suggests that some Fourth Amendment restrictions on searches do exist for the civilly committed, at least where video recording of bathrooms is involved. An excerpt:

The plaintiffs are patients at the Civil Commitment Unit for Sex Offenders (“CCUSO”) in Cherokee, Iowa. The defendants are officials at the facility. The defendants have installed video cameras in all of the patients’ restrooms. They took this action after a patient with a serious communicable disease used a restroom to engage in consensual sex with another patient, which violated the rules of the institution....

If the plaintiffs were not in any type of custody, the monitoring of their bathroom activities obviously would violate their privacy rights. On the other hand, the plaintiffs would have no right to privacy if they were being confined in a prison rather than in a civil commitment unit. The rights of the plaintiffs here fall somewhere between these two situations. CCUSO is not a prison, and the plaintiffs are not convicted prisoners. They have been civilly committed to CCUSO because they have been adjudged to be “dangerous persons” under Iowa law. As such, they retain some of their liberty interests, although those interests “are considerably less than those held by members of free society.” ...

In Serna v. Goodno, 567 F.3d 944 (8th Cir.2009), the Eighth Circuit Court of Appeals discussed the rights retained by persons involuntarily committed to a state sex offender facility ..... ["][T]he best analogy [for the involuntarily committed] is to pretrial detainees because “confinement in a state institution raise[s] concerns similar to those raised by the housing of pretrial detainees, such as the legitimate institutional interest in the safety and security of guards and other individuals in the facility, order within the facility, and the efficiency of the facility’s operations.["] ...

“The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” The court finds that the plaintiffs have greater privacy rights than those granted to convicted prisoners, and that the defendants’ use of video cameras under the circumstances of this case infringes on those rights. Accordingly, the court finds that the plaintiffs have shown that they are likely to succeed on the merits....

The public interest in ensuring that patients not act out physically and/or sexually weighs against preliminary injunctive relief in this case. However, the court finds that in light of the specific injunctive relief recommended in this order, the public interest will be adequately protected....

CCUSO is appropriately concerned about activities of patients in the bathrooms at the facility, but to its credit, in its policy it has attempted to protect, at least to a certain extent, the privacy rights of its patients. The court believes it can fashion relief that will address the defendants’ concerns while, at the same time, protect the plaintiffs’ interests while the case is processed.

The court recommends that the plaintiffs’ motion for preliminary injunction be granted, and that the defendants be enjoined as follows:

During the pendency of this action, video cameras may be maintained and operated in the restrooms and showers of the facility, but no one is permitted to monitor or view the video or any recordings of the video without first obtaining an order from this court authorizing such viewing. The court will authorize such viewing if the requesting party establishes that there is a reasonable suspicion that evidence of criminal behavior, sexual contact, and/or acts jeopardizing the secure and safe operation of the facility will be found on the video or on a recording of the video. Any motion requesting authorization to view a video or a recording of a video may be filed ex parte and under seal.

George Will recently published a good Washington Post column on the ill-conceived People’s Rights Amendment, which Eugene Volokh and I blogged about here and here. Will points out several serious flaws in the proposal, and builds on some of the points we made:

Controversies can be wonderfully clarified when people follow the logic of illogical premises to perverse conclusions....

Joined by House Minority Leader Nancy Pelosi (D-Calif.), 26 other Democrats and one Republican, [Rep. James McGovern] proposes a constitutional amendment to radically contract First Amendment protections. His purpose is to vastly expand government’s power — i.e., the power of incumbent legislators — to write laws regulating, rationing or even proscribing speech in elections that determine the composition of the legislature and the rest of the government. McGovern’s proposal vindicates those who say that most campaign-finance “reforms” are incompatible with the First Amendment...

His “People’s Rights Amendment” declares that the Constitution protects only the rights of “natural persons,” not such persons organized in corporations...

McGovern stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” — have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.

Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights. By doing so, the amendment would empower the government to do much more than proscribe speech. Ilya Somin of George Mason University Law School, writing for the Volokh Conspiracy blog, notes that government, unleashed by McGovern’s amendment, could regulate religious practices at most houses of

worship, conduct whatever searches it wants, reasonable or not, of corporate entities, and seize corporate-owned property for whatever it deems public uses — without paying compensation. Yes, McGovern’s scythe would mow down the Fourth and Fifth Amendments, as well as the First.

One can argue for the constitutionality of campaign finance regulations on several grounds. But doing so on the basis that people organized into corporate entities have no constitutional rights does indeed lead us down the dangerous path dramatically illustrated by the Peoples’ Rights Amendment.