Tag: search and seizure

Supreme Court Reinforces Jones Conception of 4th Amendment

In a per curiam opinion this week, Grady v. North Carolina, the U.S. Supreme Court reinforced recent 4th Amendment decisions in holding that when the government physically occupies private property for the purpose of obtaining information, it engages in a search under the 4th Amendment.

The State of North Carolina subjects certain repeat offenders to a lifetime of satellite-based monitoring (SBM) after they complete their sentences.  The plaintiff, Torrey Dale Grady, argued that such a program represents a violation of his 4th Amendment rights under recent U.S. Supreme Court opinions, including a 2012 case called United States v. Jones (installing a GPS tracker on a suspect’s car represents a search) and a 2013 case called Florida v. Jardines (using a drug-sniffing dog on a suspect’s porch represents a search).

The Supreme Court agreed with Grady that such monitoring constitutes a search. In light of these decisions, it follows that a state also conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.

In concluding otherwise, the North Carolina Court of Appeals apparently placed decisive weight on the fact that the State’s monitoring program is civil in nature. See Jones, ___ N. C. App., at ___, 750 S. E. 2d, at 886 (“the instant case … involves a civil SBM proceeding”). “It is well settled,” however, “that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations,” Ontario v. Quon, 560 U. S. 746, 755 (2010), and the government’s purpose in collecting information does not control whether the method of collection constitutes a search. A building inspector who enters a home simply to ensure compliance with civil safety regulations has undoubtedly conducted a search under the Fourth Amendment. 

The court also rejected North Carolina’s somewhat strange argument that its monitoring program is not meant to collect information:

Using Metadata to Find Paul Revere

What stood out to me in David Brooks’ amateur psychologizing about NSA leaker Edward Snowden on Monday was his claim that Snowden “has not been able to point to any specific abuses.” Brooks’ legal skills are even worse than his psychologizing. He didn’t notice that the document Snowden leaked was a general warrant. It fails to satisfy the Fourth Amendment’s requirements of probable cause and particularity. That’s an abuse.

I gather that it’s hard to apply the principles of liberty and our nation’s founding charter to the new world of data. In aid of your consideration, I offer you the fun essay: “Using Metadata to Find Paul Revere,” which recounts how metadata (so-called) reveals relationships and, from the perspective of King George, sedition.

The essay concludes:

[I]f a mere scribe such as I—one who knows nearly nothing—can use the very simplest of these methods to pick the name of a traitor like Paul Revere from those of two hundred and fifty four other men, using nothing but a list of memberships and a portable calculating engine, then just think what weapons we might wield in the defense of liberty one or two centuries from now.

The present-day federal surveillance programs revealed in media reports are “the tip of the iceberg,” Rep. Loretta Sanchez (D-CA) said Wednesday after being briefed Tuesday.

A Brief Civil Liberties Quiz

See if you can spot the civil-liberties victory:

  1. The Supreme Court says the government can put your DNA in a national database, even if you were wrongly arrested.
  2. The State of Mississippi imposes mandatory collection of the DNA of babies born to teenage moms, neither of which is suspected of a crime.
  3. The Department of Justice is tracking and threatening to prosecute reporters, for the crime of reporting.
  4. The National Security Agency is collecting everyone’s phone records, even if they suspect you of nothing.
  5. The U.S. Senate kills a bill that could lead to a registry of law-abiding gun owners.

Answer: #5. 

Those crazy senators are looking less crazy all the time. 

“You could use it at a specific event. You could use it at a shooting-prone location…”

That’s NYPD Commissioner Ray Kelly touting a new technology called “terahertz imaging detection” to a local news outlet.

Terahertz radiation is electromagnetic waves at the high end of the infrared band, just below the microwave band. The waves can penetrate a wide variety of non-conducting materials, such as clothing, paper, cardboard, wood, masonry, plastic, and ceramics, but they can’t penetrate metal or water. Thus, directing terahertz radiation at a person and capturing the waves that bounce off them can reveal what is under their clothes without the discomfort and danger of going “hands-on” in a search for weapons. Many materials have unique spectral “fingerprints” in the terahertz range, so terahertz imaging can be tuned to reveal only certain materials. (In case you’re wondering, I got this information off the top of my head…)

Will the machines be tuned to display only particular materials? Or will they display images of breasts, buttocks, and crotches? The TSA’s “strip-search machines” got the moniker they have because they did the latter—until the agency tardily re-configured them.

Then there’s the flip-side of not going “hands-on.” Terahertz imaging detection doesn’t natively reveal to the person being searched that law enforcement has picked him or her out for scrutiny. A pat-down certainly lets the individual know he or she is being searched, positioning one to observe and challenge one’s treatment as a suspect. Terahertz imaging lacks this natural—if insufficient—check on abuse.

So terahertz imaging is not just a “hi-tech pat-down.” Its potential takes what would be a pat-down and makes it into a secret, but intimate, visual examination—a surreptitious strip-search. Pat-downs and secret strip-searches are very different things, and it is not necessarily reasonable, where a pat-down might be called for, to use terahertz imaging.

And that brings us to the fundamental problem with Commissioner Kelly’s proffer to use this technology at a “specific event” or at a “shooting-prone location.” These contexts do not create the individualized suspicion that Fourth Amendment law demands when government agents are going to examine intimate details of a person’s body and concealed possessions.

It is certainly possible to devise a terahertz imaging device and a set of use protocols that are constitutional and appropriate for routine, domestic law enforcement, but Commissioner Kelly hasn’t thought of one, and I can’t either.

Consider the dollar costs and potential health effects of terahertz imaging detection, it might just be that the pat-downs pass muster far better than the high-tech gadgetry.

Blurry Lines, Discrete Acts, and Government Searches

I’ve written before about the “Mosaic Theory” some courts have recently employed to conclude that certain forms of government surveillance may trigger Fourth Amendment protection in the aggregate, even if the surveillance can be broken down into components that don’t fall under the traditional definition of a Fourth Amendment “search.” This has been applied specifically to high-tech forms of location tracking, where several judges have concluded that a person may have a privacy interest in the totality of their public movements over a long period of time, even though observing a person at any particular public place in a specific instance is not an intrusion on privacy. I’ve explained in that previous post why I find this reasoning compelling. Legal scholar Orin Kerr, however, remains unmoved, and suggests that divergent decisions applying the Mosaic Theory to government acquisition of stored cell phone location records effectively serve as a reductio of that theory:

To my mind, this opinion reveals the absurdity of Maynard’s mosaic theory. The analysis is all “look ma, no hands.” No one knows where the line is, or even what the line is. Sure, you could just count days of surveillance: perhaps 30 days triggers a warrant but 29 days doesn’t. But there is no reason the access to records has to be continuous. The government can skip around days, or get records from a few days here and a few days there. Who can tell how much is enough? No one knows what is revealing, because what is revealing depends on what the records actually say — and no one but the phone companies know what they say. So Judge Orenstein has to wing it, announcing that “he cannot assume” that the information would be revealing because it has breaks in time. But it’s not clear to me why the break in time matters: It’s the same net amount of data collected, so I don’t know why it matters if it was collected all at once or over several discrete periods. And how much of a break matters? If 21 days is too long, is 21 days with a one-day break enough? How about a 3-day break? One week? No one knows, it seems, not even the judge himself. [….]

There are some readers who will say that the cause of justice sometimes requires hard decisions, and that if judges need to make arbitrary calls like that, then that is what we pay them to do in order to enforce the Constitution. But as I see it, the oddity of the inquiries called for by the Maynard mosaic theory shows why it is not part of the Constitution at all. In Fourth Amendment law, the lawfulness of government conduct has always been viewed discretely: Each government act is either a search or it is not a search. Under Maynard, conduct can be a non-search if viewed in isolation but a search if viewed in context — but there is no guide to tell how much context is proper. If you want to say that certain conduct is a search, then just be direct and say it’s a search. That’s fine. But a mosaic theory, in which non-searches become searches if grouped a particular way, has no proper place in Fourth Amendment law.

Orin’s point about the seeming arbitrariness of these determinations—and the difficulties it presents to police officers who need a rule to rely on—is certainly well taken. The problem is, the government is always going to have substantial control over how any particular effort at information gathering is broken into “acts” that the courts are bound to view “discretely.” If technology makes it easy to synthesize distinct pieces of information, and Fourth Amendment scrutiny is concerned exclusively with whether each particular “act” of information acquisition constitutes a search, the government ends up with substantial ability to game the system by structuring its information gathering as a series of acquisitions, each individually below the threshold.

Let’s consider a concrete case involving location monitoring. Under the Supreme Court’s ruling in United States v. Karo, technological location monitoring does count as a Fourth Amendment search requiring a warrant when it reveals information about where the tracking device is located within a private place, such as a home. On this theory, if the police want to be able to pinpoint a target’s location with sufficient precision to be able to tell when he goes from the garage on one side of the house to the bedroom at the other end, they’ll need a full blown search warrant. If they just want to know the general area the target is in—which cellular tower the phone is closest to, for instance—a subpoena or another less demanding form of court order might be sufficient.

There are, however, several methods of determining a phone’s precise location by triangulation, using data from multiple cell towers—and many cell networks use these methods to provide location services. The records from any one cell tower only yield a very general radius within which each phone registered at that tower can be presumed to be located. Combine the records from the three nearest towers, however, along with some measurements of signal strength and timing, and in an urban area where towers are relatively densely packed, you can often pinpoint the phone within a few meters.

Let’s suppose, then, that existing doctrine would require a warrant if police plan to go to the phone company and say: “We want you to triangulate the precise location of this phone for us over the past month, including at times when our suspect was at home.” What a hassle! They’ve got an out, though: They can issue separate requests for the records from each tower, then combine the data and do the triangulation themselves. As long as each request “viewed discretely” doesn’t yield enough information to pinpoint the phone within the home, there’s no search!

I don’t mean to suggest that, in practice, police are likely to use this particular method to circumvent the warrant requirement—though I wouldn’t be shocked either. But I think the example illustrates a problem with Orin’s categorical insistence on making the binary search/no-search determination only with respect to isolated “acts” of government, when the government itself controls how its monitoring is distributed across discrete acts.

Here’s another example, and one where I think there is a very real possibility that investigators are able, in practice, to game the standards governing electronic surveillance. According to the Justice Department’s U.S. Attorneys Manual, a “pen register” (which can be obtained much more easily than a search warrant) can be used to obtain general information about the domains or IP addresses a target is visiting, but not what particular pages somebody is reading. The idea is that there’s a sharp Fourth Amendment distinction between the “content” of a communication—its “meaning or purport”—and the non-content transactional information, such as the phone number or IP address, which tells you something about who is communicating, but not what is communicated. But there’s a loophole:

This policy does not apply to applications for pen register orders that would merely authorize collection of Internet Protocol (IP) addresses, even if such IP addresses can be readily translated into URLs or portions of URLs. Similarly, this policy does not apply to the collection, at a web server, of tracing information indicating the source of requests to view a particular URL using a trap and trace order.

Emphasis added. Roughly translated, this means that the government can obtain records showing that I accessed (say) the IP address of a particular political Web site, but not which specific articles I was reading. However, they may be able to separately go to that site and request the transactional logs for each article, then search through those to determine which articles were sent to me.

It seems very likely that technology will increasingly permit this kind of multi-step searching, perhaps in ways we can’t yet predict. For all that Orin is right to worry about the practical difficulty of determining how to group discrete acts of information gathering, the consequences of dogmatically insisting on evaluating each “act” in isolation seem equally absurd if it implies that the government will have the practical ability to transform a Fourth Amendment “search” into an unregulated (or much less regulated) “non-search” just by breaking it into smaller pieces.

Flex Your Rights

Friends of the Cato Institute who closely follow the news about search and seizure and other civil liberties issues will probably know that there are simple, practical steps one can take to exercise our constitutionally guaranteed liberties, even when confronted by the police.

For everyone else, there’s Flex Your Rights. Founded by former Cato intern Steven Silverman, Flex Your Rights aims to teach ordinary citizens how to make good use of their civil liberties:

The vast majority of people are mystified by the basic rules of search and seizure and due process of law. Consequentially, they’re likely to be tricked or intimidated by police into waiving their constitutional rights, resulting in a greater likelihood of regrettable outcomes.

The sum of these outcomes flow into all major criminal justice problems – including racial and class disparities in search, arrest, sentencing and incarceration rates.

In order to ensure that constitutional rights and equal justice are upheld by law enforcement, we must build a constitutionally literate citizenry.

“Regrettable outcomes” aren’t limited to time behind bars for breaking the drug laws. Consider also damage to property during searches, loss of dignity and privacy, wasted law enforcement time, and police violence during what’s sure to be a nerve-wracking encounter. All of this can happen even when you’re not violating any laws at all, and that’s reason enough to refuse a search.

The police, and the laws themselves, should work for us, and if we don’t require their help, then that should usually be for us to decide. Flex Your Rights is here to help you do so. They’ve just launched a revamped website, which looks great, and they also have a new film in production titled 10 Rules for Dealing with Police. I look forward to seeing it!