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Ninth Circuit Does Not Reach How Fourth Amendment Applies to Text Messages:
Back in November, I had a long and fairly detailed post about a pending Ninth Circuit case, United States v. McCreary, that considered how the Fourth Amendment applies to text messages. Based on the oral argument, the case seemed likely to lead to a very important precedent on how the Fourth Amendment applies to electronic communications.

  Alas, it didn't turn out that way. Last week, the Ninth Circuit affirmed McCreary's conviction without reaching the very difficult and interesting Fourth Amendment issues. Here's what the Court wrote on this issue in its nonprecedential opinion:
  The investigation of the two robberies revealed that McCreary and his co-defendant, Jonathan Hunter, communicated by text messages in planning the two robberies. The Government had a grand jury subpoena issued to the service provider, MCI/SkyTel, seeking the toll records including the text of the messages. McCreary contends that he had a reasonable expectation of privacy in these messages and that the acquisition of these messages by a grand jury subpoena without a search warrant violated his rights under the Fourth Amendment. He contends that to the extent 18 U.S.C. ยง 2703 of the Stored Communications Act authorized obtaining the text messages without probable cause and a search warrant it violated his Fourth Amendment rights.
  We do not reach this contention because we conclude that any error in admission of the text messages was harmless. The Government presented overwhelming separate, independent evidence of McCreary's guilt. The Government presented the testimony of two of the co-conspirators who participated in the robberies detailing McCreary's leadership in planning the robberies, providing clothes and guns, and giving instructions as to how the robberies were to be conducted and the getaway to be achieved. McCreary's participation was also corroborated by other substantial evidence.
  Not resolving the question makes sense if any error was harmless; better to avoid the difficult constitutional question. Still, it's frustrating from an academic perspective that these questions will have to wait for another day given how directly they were presented to the panel. Also, note that four months passed after the oral argument before the panel handed down its very short decision. I wonder if the judges spent some time working through the Fourth Amendment issues before deciding that the better course was to pass on them.

  UPDATE: On the other hand, might another panel of the Ninth Circuit reach this issue in Quon v. Arch Wireless, a Stored Communications Act case argued two weeks ago? The issue was briefed in part and it arose during the oral argument, available here, although it was hardly the focus of the argument and there wasn't much helpful on the issue. Also, in that case the context is government employment; the Fourth Amendment rules for government employment are very different from the normal Fourth Amendment rules, as explained here.
CrazyTrain (mail):
One nit: It looks like this was an unpub'd memorandum decision (or a mem-dispo for former 9th Cir. clerks). For some reason, the 9th Circuit specificially instructs its clerks not to call these per curiam opinions and does not designate them as such. Of course, they meet the definition of what per curiam* means -- if it walks like a duck . . . etc.

Apologize if this was in fact a published opinion, but I couldn't find it on their site.

*Though signed majority opinions also meet the literal definition of per curiam, i.e. by the court. The author is writing for the entire court.
2.20.2008 12:57am
OrinKerr:
Thanks, Crazy Train. Yes, I've heard CA9 clerks refer to these as "mem dispos." But I didn't clerk there, so I just called them by the more common description.

Next question: At the Supreme Court, is a Brief in Opposition properly called a "bio" or an "opp"? Discuss.
2.20.2008 1:07am
Duffy Pratt (mail):
Of course, in the if it quacks department, in what sense is this opinion "unpublished." If it was unpublished, how did you get access to it?
2.20.2008 1:16am
CrazyTrain (mail):
Duffy: Point is well-taken and corrrect. It should really be called "non-precedential" or "not published in the Federal Reporter, but published in the Federal Appendix, and on Westlaw, Lexis and other publically available resources."

OK -- never clerked on the Supreme Court and although I have worked on several Supreme Court cases (five to be exact -- and two from cert to opinion on the merits; the others post grant), I don't know the answer to your question.
2.20.2008 1:29am
CrazyTrain (mail):
Actually I amend my prior response. In fact, "published" in the context of decisions of the US Courts of Appeals is a term of art meaning "published in the Federal Reporter."* Thus, even though it meets a dictionary meaning of "published," it does not mean "published" in this specific context. See also defamation law. Many things are "published" in a dictionary context, but not "published" in the meaning of libel and slander law.

* There are reasons the term of art should be abandoned however in favor of "non-precedential." For example, unpublished has a somewhat confusing and completely misunderstood meaning for district court opinions (i.e., if an opinion is "published" in the Federal Supplement or the FRD, it has the same precedential value as if it were only published on-line, or indeed only available on PACER. (And don't get started on different state courts' conventions on what is "published" or not.)
2.20.2008 1:41am
CrazyTrain (mail):
Actually I amend my prior response. In fact, "published" in the context of decisions of the US Courts of Appeals is a term of art meaning "published in the Federal Reporter."* Thus, even though it meets a dictionary meaning of "published," it does not mean "published" in this specific context. See also defamation law. Many things are "published" in a dictionary context, but not "published" in the meaning of libel and slander law.

* There are reasons the term of art should be abandoned however in favor of "non-precedential." For example, unpublished has a somewhat confusing and completely misunderstood meaning for district court opinions (i.e., if an opinion is "published" in the Federal Supplement or the FRD, it has the same precedential value as if it were only published on-line, or indeed only available on PACER. (And don't get started on different state courts' conventions on what is "published" or not.)
2.20.2008 1:41am
Dave N (mail):
The Ninth Circuit posts its unpublished opinions and they are easily accessible. On the Ninth Circuit homepage, the button marked Opinions takes you to the published opinions. The button marked Memoranda takes you to the unpublished dispositions. In the case of United States v. McCreary, the unpublished disposition is the first listed for February 12, identifying Judges Hug, William Fletcher, and Clifton as the panel. Unpublished dispositions are listed in numerical order based on the cases' docket numbers.

I realize that this all inside baseball stuff for Ninth Circuit geeks--but I hope others find it helpful as well.
2.20.2008 1:44am
Duffy Pratt (mail):
And the idea that a court can, by fiat, decide that one of its opinions is not precedential really bugs me. It's up to later courts to decide the precedential value of an opinion, and not up to the deciding court. The entire common law system hinges on this order of precedent. (Of course, the danger here is that a court will start playing fast and loose with its "non-precedential" opinions because they won't have any bearing on what other courts will do. And that in turn tends to make the courts lawless.)
2.20.2008 1:44am
Dave N (mail):
BTW, Crazy Train is absolutely correct in his analysis. I agree completely that "non-precedential" is a better term than "unpublished," particularly since "unpublished" opinions are easily found on Westlaw and Nexis.
2.20.2008 1:53am
OrinKerr:
Ok, ok, I give up -- you guys are sticklers and law geeks, and that is why I love you.
2.20.2008 2:02am
Dave N (mail):
Duffy Pratt,

Due to the sheer number of cases, most cases in most appellate courts are unpublished. In the Ninth Circuit, the only cases I know of that are published as a matter of policy are the Court's en banc decisions. Theoretically, the unpublished opinions do not expand the law in any meaningful respect, since there are published cases that already have the same holding.

Of course, that is not always true, and on rare circumstances a memoranda opinion can be published if one party or the other makes a compelling argument for publication.

All that said, it is my experience that unpublished opinions are often poorly written with little analysis. The unpublished McCreary decision is the exception and not the rule.

On an unrelated note, the unpublished disposition of McCreary's co-defendant, Jonathan Hunter, is found immediately after McCreary's on the page I linked to in an earlier comment. Hunter apparently did not raise the "expectation of privacy" issue that McCreary did.
2.20.2008 2:10am
markm (mail):
Since this decision was fact based and never reached the disputable part of the law[1], it would establish no useful precedents if it was "published".

[1] To me, the whole doctrine of "harmless error" should be questionable. I would think that the prosecutor is closer to the case and better able to judge the importance of each piece of evidence than an appeals panel. If the prosecution introduces questionable evidence during trial, they must think it might be needed to overcome skepticism about the rest of the evidence, and that it's more important to get it in than to ensure there is no possible cause to overturn the trial verdict. So why should the appeals panel think they can make a judgment on the facts of "harmless error" better than the prosecutor?

But I know that I'd lose on that argument. The precedents for "harmless error" are ancient and solid, and this case adds nothing to them.
2.20.2008 8:59am
Duffy Pratt (mail):
Dave N:

I'm sure that all that you say is true, but I still think its a bad idea. Or let me amend that, it becomes a very bad idea when a court also makes it known that some of its opinions are not to be cited (as I believe the 2nd Cir. has, and some other courts have). I still have trouble with a court designating some of its opinions as being more valuable than others, because I don't think thats the way the common law should work. But when a court says not to cite something it has done, it is basically abdicating responsibility for what it has done.

The weight of precedent is not only a question of a principle being published once. The more often that other cases follow that principle, and the more easily that they follow it, then the stronger the weight of the principle itself. Thus, it seems to me, that the practice of unpublishing at best has the effect of subverting the actual weight of some principles, and at worst it creates a ghetto of badly reasoned, and possibly badly decided, cases.
2.20.2008 9:03am
Justin (mail):
Having some familiarity with the inner workings of the 9th circuit, a 4 month non-prec is likely to be the result of a "published" majority decision failing to get a second vote. Either that's because they actually disagreed on harmlessness, or because of a stalemate on the 4th Amendment question, but some agreement on harmlessness.

Because there's no dissent, its probably the latter, but sometimes a judge who would have gone the other way won't bother dissenting if the issue is irrelevant enough.
2.20.2008 9:34am
Dave N (mail):
Markm,

The problem with your argument is that trial prosecutors often over-prove their cases. As a result, evidence can be harmless because the disputed evidence is nothing more than icing on the cake. In this case, there were evidently both witness identifications and admissions. The text messages, while damning, did not change the outcome. There is high probability the jury would have voted to convict regardless of whether the text messages were admitted or not.
2.20.2008 10:18am
Phantom (mail):
My big beef with the harmless error analysis here is that it gets it backwards.

One of the duties of the appellate courts is to instruct the lower courts on the law. To that end, an appellate court confronted by a complex issue ought to first determine whether an error has occurred and then determine whether it was harmless.

In cases where the court decides that "the error, if any, was harmless," it passes on the opportunity to clarify complex areas of the criminal law where there is no loss to society for the errors of the trial courts or the police. This, ultimately, will help future trial courts and law enforcement personnel get it right in the future, thereby avoiding situations where the truly guilty may escape punishment due to harmful errors.

That's my take on the harmless error analysis anyway.

--PtM
2.20.2008 11:47am
Bruce:
Holy moly, Quon is still around? It's the stored communications case that never dies. Thanks Orin I'll have to check that out.
2.20.2008 11:50am
Duffy Pratt (mail):
I always thought the objection to harmless error is that it undercuts trial by jury.

Wherever there is harmless error, there must be at least two independent grounds for conviction. The appellate court has no way of knowing which one the jury relied on. When it says the error was harmless, it is saying the jury would have convicted given only the grounds which were free from error. In all other areas, a court can substitute its judgment for the jury's judgment only when no reasonable jury could have found otherwise.

In this case, the court concluded, as Dave N said, that the jury would have voted to convict whether the text messages were admitted or not. How does the court know this? Did they poll the jury? Did the jury make any such finding? Of course not. So what is the basis? It's just that the court read the record and decided the guy was guilty according to their own standard. If the court can do this sort of thing so well, why bother with juries at all?

BTW, my guess is that harmless error analysis was probably first introduced as a way to cut into the exclusionary rule by justices who didn't have the votes to overturn it outright. Can anyone confirm that, at least as to its origin?
2.20.2008 12:10pm
Just Dropping By (mail):
And the idea that a court can, by fiat, decide that one of its opinions is not precedential really bugs me.

Well, the new Fed. R. App. P. 32.1, which took effect in December 2006, limits that on a going ahead basis since it states:

A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:

(i) designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like; and

(ii) issued on or after January 1, 2007.

Some courts, such as the Tenth Circuit (10th Cir. R. 32.1(C)) have gone further and made the rule retroactive as well. Such decisions are still technically not considered "precedential," but they are deemed "persuasive," which in my experience is usually just as good.
2.20.2008 1:41pm