Tag: Fourth Amendment

The Fourth Amendment Doesn’t Allow Roving Licenses to Detain People Without Probable Cause

This blogpost was co-authored by Cato legal associate David Scott.

Searches and seizures have long been held to be unreasonable under the Fourth Amendment unless supported by probable cause. There are only a few narrow exceptions to that probable cause requirement.

The Supreme Court found one such exception in the 1981 case of Michigan v. Summers, which gave police a limited authority to detain the occupants of premises that were lawfully being searched. The Court justified this limited detention by invoking the need for officers to have “unquestioned command” of the premises and prevent flight should incriminating evidence be found, thus “minimizing the risk of harm to the officers” and facilitating “the orderly completion of the search.”

In 2005, police officers were preparing to execute a search warrant on a home in Wyandanch, New York, when they witnessed Chunon Bailey—who was unaware of the search warrant or its pending execution—exit the home and begin to drive away. Officers followed and subsequently stopped Bailey, detaining him about a mile from the premises to be searched. The government contends that Bailey’s detention was proper pursuant to Summers.

The district court agreed and the U.S. Court of Appeals for the Second Circuit affirmed, holding that the interests expounded in Summers justify the detention of a prior occupant of the premises to be searched so long as the detention is made “as soon as practicable” after identifying “an individual in the process of leaving the premises.” The Supreme Court agreed to review the case and Cato has now joined the ACLU and the New York Civil Liberties Union in filing an amicus brief urging the Court to reverse the Second Circuit.

Our argument is three-fold. First, the Second Circuit’s extension of Summers lacks any limiting principles to the power to detain without probable cause. Without an outer limit, the Summers exception would be applicable to any number of situations in which detention without probable cause is unreasonable. A warrant to search a particular place would be transformed into a roving license to detain any person thought to be associated with that place.

Second, the Second Circuit’s attempt to establish a limiting principle by requiring the detention to occur “as soon as practicable” is insufficient because it has no principled basis and is inconsistent with the underlying values of the Fourth Amendment. Furthermore, the “as soon as practicable” standard provides no clear guidance to officers as to when a detention is permissible.

Finally, the extension of Summers here is unnecessary to ensure that officers maintain “unquestioned command” of the premises during a search: The detention of an individual away from the premises to be searched has nothing to do with police “command” of the premises, but is instead merely a means of holding someone pending the speculative emergence of probable cause.

The Supreme Court will hear argument in Bailey v. United States on October 30.

All Your Records Are Belong to U.S.

Twice in the last month, the Ninth Circuit Court of Appeals has affirmed that the government can access records about you held by third parties without getting a warrant. It’s a nice illustration of the broad and deep reach of the “third party doctrine.”

U.S. v. Golden Valley Electric Association is the more recent of the two. In that case, the government delivered an administrative subpoena to a member-owned electricity cooperative asking for quite a bit of information about three residences it served:

customer information including full name, address, telephone number, and any account information for customer; method of payment (credit card, debit card, cash, check) with card number and account information; to include power consumption records and date(s) service was initiated and terminated for the period 10-01-2009 through 12-14-2010…

Golden Valley resisted the subpoena on a number of bases, including by arguing that criminal investigations require a warrant.

The court rejected the Fourth Amendment argument because the customer of a business like Golden Valley “lacks ‘a reasonable expectation of privacy in an item,’ like a business record, ‘in which he has no possessory or ownership interest.’” That’s the third-party doctrine: The government can access your electricity usage records and billing information without implicating the Fourth Amendment.

In mid-July, a different panel of the Ninth Circuit concluded the same thing about hotel records.

Los Angeles Municipal Code section 41.49 requires hotel operators to maintain information about their guests,

including name and address; total number of guests; make, type and license number of the guest’s vehicle if parked on hotel premises; date and time of arrival; scheduled date of departure; room number; rate charged and collected; method of payment; and the name of the hotel employee who checked the guest in.

These records must be held for 90 days and made available for inspection by any officers of the Los Angeles Police Department.

The owners of motels in Los Angeles challenged the law as a facial violation of the Fourth Amendment. The court rejected that argument, finding that the information the ordinance makes available to law enforcement “does not, on its face, appear confidential or ‘private’ from the perspective of the hotel operator.” For their part, hotel guests do not have a “reasonable expectation of privacy in guest registry information once they have provided it to the hotel operator.”

This is another unremarkable application of the third party doctrine, which says that people do not have Fourth Amendment rights against unreasonable search and seizure with respect to information they have shared with others.

Last January, in her concurrence to the Supreme Court’s ruling in U.S. v. Jones, Justice Sotomayor questioned the “third party doctrine” (as Justice Alito had done during oral argument).

[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.

It is not a slam dunk that utility and hotel records should be Fourth-Amendment protected, requiring probable cause and a warrant before law enforcement can access them. But if electric providers and hoteliers maintain information in confidence due to contractual or regulatory obligations, that should extend the protection of the Fourth Amendment to what I think of as the digital effects created by modern living. This is not so much because of the sensitivities around electricity use or lodging, but because this is the rule we need to secure the much more sensitive data we routinely share and store with third parties online.

Fourth Amendment Gone to the Dogs—and to Lasers?!

For all their use by law enforcement across the country, drug-sniffing dogs haven’t gotten a lot of consideration in the Supreme Court. In a pair of cases next fall, though, the Court seems likely to give them some attention. Florida v. Harris is one of the cases it has taken. Harris will examine “[w]hether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle.”

This week, we filed an amicus brief in the other drug-sniffing dog case, coming out of the same state. Florida v. Jardines asks whether the Fourth Amendment would be implicated if the government brought a drug-sniffing dog to the front door of your home seeking the scent of illegality.

What the Court has done with drug-sniffing dogs so far is not very good. We homed in on the major precedent, Caballes, to illustrate the weakness of the “reasonable expectation of privacy” test that originated in United States v. Katz (1967).

In Illinois v. Caballes, 543 U.S. 405 (2005), this Court did not apply Katz analysis. It did not examine (or even assume) whether Roy Caballes had exhibited a subjective expectation of privacy, the first step in the Katz test. Thus, the Court could not take the second step, examining its objective reasonableness.

Instead, the Caballes Court skipped forward to a corollary of the Katz test that the Court had drawn in United States v. Jacobsen, 466 U.S. 109 (1984): “Official conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” Caballes, 543 U.S. at 408 (quoting Jacobsen, 466 U.S. at 123).

This is a logical extension of the Katz test, and one that helps reveal its weakness in maintaining the Fourth Amendment’s protections consistently over time. Now, instead of examining whether searches and seizures are reasonable, courts applying the Jacobsen/Caballes corollary can uphold any activity of government agents sufficiently tailored to discovering only crime.

What kinds of activities might those include? We talked about lasers.

A DHS program that might be directed not only at persons, but also at their houses and effects, is called the “Remote Vapor Inspection System” (or RVIS). RVIS “generates laser beams at various frequencies” to be aimed at a “target vapor.” Beams “reflected and scattered back to the sensor head” reveal “spectral ‘signatures’” that can be compared with the signatures of sought-after gasses and particulates. [citations omitted] Using RVIS, government agents might remotely examine the molecular content of the air in houses and cars, quietly and routinely explore the gasses exiting houses through chimneys and air ducts, and perhaps even silently inspect any person’s exhaled breath. If RVIS technology is programmed to indicate only on substances that indicate wrongdoing, the Jacobsen/Caballes corollary extinguishes the idea that its pervasive, frequent, and secret use would be a search.

If a dog sniff only reveals illegal activity, compromising no privacy interest, it’s not a search. So using lasers to check your breath for illegal substances is not a search either. We hope, obviously, that the Court will do away with this rule, which is so attenuated from both the language and the purpose of the Fourth Amendment.

Instead of determining whether a person has “reasonable expectations of privacy”—we called that doctrine a “jumble of puzzles”—courts should examine whether a “search” has occurred by seeing if police accessed something that was hidden from view.

When a person has used physics and law to conceal something from others, the Fourth Amendment and the Court should back those privacy-protective arrangements, breaching them only when there is probable cause and a warrant (or some exception to the warrant requirement).

To hold otherwise would be to allow the government to invade privacy not just using drug-sniffing dogs but using ever more sophisticated technology.

It’s “Declaration of Internet Freedom” Day!

… or at least I should have said so back on March 4th.

That was the anniversary of the day that Congress proposed to append a Bill of Rights to our Constitution. With a lovely preamble that went a little somethin’ like this:

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

The Bill of Rights contains gems like “Congress shall make no law … abridging the freedom of speech, or of the press,” (Amendment 1) and, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” (Amendment 4).

I think this original Declaration of Internet Freedom is the bee’s knees. Yes, it’s taking some work to apply its strictures to the modern communications environment, but that’s a much more contained problem than starting over.

Starting over. That’s what a collection of really lovely groups–some highly pro-regulation, others handmaidens of government growth–are doing. They’ve come up with a “Declaration of Internet Freedom” whose principal virtue is a pretty cool graphic. The actual “principles” in it are so weasel-y that I wouldn’t trust ‘em as far as I could throw ‘em.

When you’re done pondering how one could “throw” a principle, consider an alternative to the “mainstream” declaration put out by our friends at TechFreedom. Their Declaration of Internet Freedom has a bunch of principles like “Humility” and “Rule of Law.”

Their thing on “Free Expression” cites the First Amendment. Remember that one? That’s the “Congress shall make no law” one. So that’s pretty good.

But I’m really hoping that nobody living today gets to define the basic principles by which the Internet is ruled. We’ve got that. It’s a neato collection of negative rights, preventing the government from interfering with society’s development, whether that development occurs online or off.

So happy Declaration of Internet Freedom day! I’ll be celebrating the real one.

In case you’ve gotten confused in all the jostling around, the real one is the Bill of Rights.

Secret Cell Phone Tracking in the Sunshine State

The South Florida Sun-Sentinel provides us with one more data point showing the growing frequency with which police are using cell phones as tracking devices—a practice whose surprising prevalence the ACLU shone light on in April. In fiscal year 2011-2012, the first year Florida kept tabs on cell location tracking, state authorities made 171 location tracking requests—and apparently hope to expand the program.

The article alludes to a couple of specific cases in which location tracking was employed—to find a murder suspect and a girl who was thought to have been kidnapped—both of which are perfectly legitimate uses of the technology in principle. In general, if there’s enough evidence to issue an arrest warrant, the same evidence should support a warrant for tracking authority when the suspect’s location isn’t immediately known. In cases where police have a good faith belief that there’s a serious emergency—such as a suspected kidnapping—it’s even reasonable to allow police to seek location information without a court order, as is standard practice with most other kinds of electronic records requests. But the Sun-Sentinel report is also unsettlingly vague about the precise legal standard followed in non-emergency cases. According to a law enforcement official quoted in the story, the Florida Department of Law Enforcement’s Electronic Surveillance “always seeks judicial approval to trail someone with GPS,” while the written policy only “instructs agents to show probable cause for criminal activity to the department’s legal counsel to see if a court order is necessary,” implying that it sometimes is not necessary.

The term “court order,” however, is quite broad: the word that’s conspicuously absent from these definitions is “warrant”—an order meeting the Fourth Amendment’s standards. In the past, the Justice Department has argued that many kinds of location tracking may be conducted using other kinds of authority, such as so-called “pen register” and “2403(d)” orders. Unlike full-fledged search warrants, which require a showing of “probable cause” to believe the suspect has committed a crime, these lesser authorities require only “reasonable grounds” to believe the information sought would be “relevant” to some legitimate investigation. That is, needless to say, a far lower hurdle to meet.

Police refusal to discuss the program with reporters is also part of a larger pattern of secrecy surrounding location tracking. As Magistrate Judge Stephen Smith observes in a recent and important paper, such orders are often sealed indefinitely—which in practice means “forever.” Unlike the targets of ordinary wiretaps, who must eventually be informed about the surveillance after the fact, citizens who’ve been lojacked may never learn that the authorities were mapping their every move. Such secrecy may be useful to police—but it also means that improper use of an intrusive power is far less likely to ever come to light.

Location tracking can be a valuable tool for an array of legitimate law enforcement purposes—but especially in light of the Supreme Court’s unanimous decision in United States v. Jones, it has to be governed by clear, uniform standards that satisfy the demands of the Fourth Amendment.

David Davis Is Right

British Conservative Party member and former shadow home secretary David Davis says that data retention requirements being debated in the U.K. are “incredibly intrusive” and would only “catch the innocent and incompetent.” He’s right.

The United States was formed after a Revolutionary War against Britain so that we could live under a government more protective of liberty. The Fourth Amendment’s requirement of particularity with respect to warrants prevents our government from issuing blanket requirements that information about all of our communications be retained in case it’s needed for law enforcement.

At least we must hope so. Because some in our Congress seem to have little qualm about reversing the Revolutionary War’s results.