Daily Archives: August 17, 2015

The below article was reproduced from The Federal Law Enforcement Informer, August 2015 issue. The Informer is a product published by the Department of Homeland Security, Federal Law Enforcement Training Center (FLETC), Office of Chief Counsel, Legal Training Division. The entire document, which contains case notes on notable federal cases, can be found here.

REASONABLENESS AND POST-RILEY SMARTPHONE SEARCHES

Robert Duncan, Esq.

Attorney Advisor and Senior Instructor

Office of Chief Counsel

Federal Law Enforcement Training Centers

Artesia, New Mexico

Reasonableness as Touchstone

The Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures1 and in so doing, put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints [and] forever secure[d] the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law.2 With the remainder of the Fourth Amendment prohibiting the issuance of warrants without probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,3 officers may view the law governing search and seizure as largely evidentiary or procedural but the underlying command of the Fourth Amendment is always that searches and seizures be reasonable.4

The Supreme Court has clearly defined searches and seizures. A search occurs when

an expectation of privacy that society is prepared to consider reasonable is infringed[while] seizure of property occurs when there is some meaningful interference with an individuals possessory interests in that property.5 The Supreme Court has held that the touchstone of the Fourth Amendment is reasonableness6 but there is no talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable.7

Determining Reasonableness

Determining whether a search is reasonable under the Fourth Amendment usually involves looking to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the [Fourth Amendments] framing8 or by assessing, on the one hand, the degree to which it intrudes upon an individuals privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.9

As neither a warrant nor probable cause is an indispensable component of reasonableness,10 the Supreme Court has determined that [w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing[]reasonableness generally requires the obtaining of a judicial warrant.11 In the absence of a warrant, drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime,12 a search is reasonable only if it falls within a specific exception to the warrant requirement,13 even if the warrantless search violates a persons reasonable expectation of privacy.14

The Supreme Court recognizes few specifically established and well-delineated exceptions15 to the warrant requirement. Those exceptions include the plain view doctrine,16 which allows an officer to seize evidence and contraband found in plain view during a lawful observation without a warrant;17 the Terry stop and Terry frisk, which grants authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual;18 certain limited searches incident to lawful arrest;19 and searches involving exigent circumstances.20

A party alleging an unconstitutional search must establish both a subjective and an objective expectation of privacy.21 The Supreme Court has held the subjective component requires that a person exhibit an actual expectation of privacy, while the objective component requires that the privacy expectation be one that society is prepared to recognize as reasonable.22

A smartphone users expectation of privacy is viewed objectively and must be justifiable under the circumstances.23 With the advent of social media and smartphones, people can post a photo or video from their phones, allowing them to share their lives instantly.24 Until 2014, one could make a colorable argument that it is unreasonable to have an expectation of privacy when one records and instantly shares life events on a smartphone; if there is no violation of a persons reasonable expectation of privacy by police or government agents, then there is no Fourth Amendment search.25 Despite the prevalence of sharing, users also routinely use passwords, thumbprint scans, or other mechanisms to prevent unwanted viewing of the devices contents. Using these features demonstrates an intention to keep a devices contents private; the remaining question is whether the privacy expectation created by using a password is one that society is prepared to recognize as reasonable.

In early 2014, the Pew Research Center conducted a study that found more than 90 percent of Americans now own or regularly use a cellphone, and 58 percent have a more sophisticated smartphone.26 Even though society may share some data to others, society accepts that privacy expectations are reasonable on data stored on a smartphone itself and protected by passwords. In a digital age all of our papers and effects [are no longer] stored solely in satchels, briefcases, cabinets, and folders [but] ratherstored digitally on hard drives, flash drives, memory cards, and discs.27 Even the Supreme Courtan institution that does not enjoy a tech-savvy reputationhas agreed that papers and effects have given way to smartphones and selfies.28

Riley v. California

The Supreme Court extended reasonable expectations of privacy to smartphone data in Riley v. California, 134 S. Ct. 2473, 2485, 189 L. Ed. 2d 430 (2014). Riley involved two separate arrests and searches of smartphones by police officers, demonstrates the inverse relationship between smartphone technology and reasonableness of smartphone searches. Officers attempted to search a phone as part of a Terry frisk.

As to the Terry frisk exception, the Court held that digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestees escape, thus significantly limiting the use of this exception for reasonable searches of smartphones.29 The Court also noted that smartphones place vast quantities of personal information literally in the hands of individuals [and a] search of the information on a cell phone bears little resemblance to the type of brief physical search considered in previous cases involving searches incident to lawful arrest.30

As to one of the remaining exceptions, exigent circumstances encompass a broad array of factors considered by the courts: the gravity or violent nature of the offense with which the suspect is to be charged; a reasonable belief that the suspect is armed; probable cause to believe the suspect committed the crime; strong reason to believe the suspect is in the premises being entered; the likelihood that a delay could cause the escape of the suspect or the destruction of essential Fourth Amendment evidence; and the safety of the officers or the public jeopardized by delay.31

The destruction of evidence factor was often cited in court cases through the mid-1990s through the late 2000s:

On a cell phone, the telephone numbers stored in the memory can be erased as a result of incoming phone calls and the deletion of text messages could be as soon as midnight the next day[O]nce the cell phone powers down evidence can be lost. [A popular cell phone, the Motorola Razer] has an option called message clean up that wipes away text messages between 1 and 99 days. There is no way to determine by

looking at the Razer cell phones screen, if the message clean-up option has been activated. If the one-day message clean up is chosen, any messages stored on the Razer cell phone will be deleted at midnight on the following day it is received.

Accordingly, this Court finds that exigent circumstances existed and the text messages retrieved from the Razer cell phones are admissible.32

As smartphone technology has developed, however, the Supreme Court views exigent circumstances with increasing skepticism. In 2014, the technology used in the most basic of phones was unheard of ten years ago33 and the current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos.34

Advances in technology also mean that officers can prevent destruction of data by disconnecting a phone from the networkFirst, law enforcement officers can turn the phone off or remove its battery. Second, if they are concerned about encryption or other potential problems, they can leave a phone powered on and place it in an [Faraday] enclosure that isolates the phone from radio waves.35 With these precautions in place, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone.36

Seek Warrant, Avoid Suppression of Evidence

With the Supreme Courts holding in Riley, trial courts will likely suppress smartphone evidence without a search warrant or factual information that an exception to the warrant requirement existed at the time of the search. Fortunately, officers can find model search warrant templates at the nearest Regional Computer Forensics Laboratories (RCFL) site and seek assistance from the Federal Bureau of Investigation (FBI). While other avenues exist for cell phone investigations, the RCFL and FBI are especially good resources because almost every FBI Field Office or Resident Agency has a Cell Phone Investigative Kiosk (CPIK) available for use.

According to the FBI, the CPIK allow users to extract data from a cell phone, put it into a report, and burn the report to a CD or DVD in as little as 30 minutes.37 Full-size kiosks are physically located in nearly all FBI Field Offices and RCFLs; portable kiosks are available at many FBI Resident Agencies. Drafting a search warrant and using the CPIK may help ensure that valuable information obtained from a smartphone may be admissible and help win convictions in a criminal case post-Riley.

1. U.S. CONST. AMEND. IV. 2. Mapp v. Ohio, 367 U.S. 643, 647, 81 S. Ct. 1684, 1687, 6 L. Ed. 2d 1081 (1961) citing Weeks v. United States, 232 U.S. 383, 391, 34 S. Ct. 341, 344, 58 L. Ed. 652 (1914). 3. U.S. CONST. AMEND. IV. 4. New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 740, 83 L.Ed.2d 720 (1985). 5. United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85 (1984). 6. See United States v. Knights, 534 U.S. 112, 112-13, 122 S. Ct. 587, 588, 151 L. Ed. 2d 497 (2001). 7. OConnor v. Ortega, 480 U.S. 709, 715, 107 S. Ct. 1492, 1496, 94 L. Ed. 2d 714 (1987). 8. California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 1549-50, 113 L.Ed.2d 690 (1991); See e.g. United States v. Watson, 423 U.S. 411, 418-420, 96 S.Ct. 820, 825-26, 46 L.Ed.2d 598 (1976); Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 283-84, 69 L.Ed. 543 (1925). 9. Wyoming v. Houghton, 526 U.S. 295, 300, 119 S. Ct. 1297, 1300, 143 L. Ed. 2d 408 (1999).

10. Natl Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S. Ct. 1384, 1390, 103 L. Ed. 2d 685 11. Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). 12. Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948). 13. See Kentucky v. King, 563 U.S. , , 131 S.Ct. 1849, 18561857, 179 L.Ed.2d 865 (2011). 14. See Illinois v. Rodriguez, 497 U.S. 177, 185, 110 S. Ct. 2793, 2799, 111 L. Ed. 2d 148 (1990). 15. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). 16. Smartphones usually have an automatic lock or passcode which prevents casual observation by law enforcement officers, making this exception of limited use in the field.

17. See Horton v. California, 496 U.S. 128, 128, 110 S. Ct. 2301, 2303, 110 L. Ed. 2d 112 (1990). 18. See Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889 (1968).

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Fourth Amendment | Signal 108

The dust-up between New Jersey Gov. Chris Christie and Kentucky Sen. Rand Paul over presidential fidelity to the Constitution -- particularly the Fourth Amendment -- was the most illuminating two minutes of the Republican debate last week.

It is a well-regarded historical truism that the Fourth Amendment was written by victims of government snooping, the 1770s version. The Framers wrote it to assure that the new federal government could never do to Americans what the king had done to the colonists.

What did the king do? He dispatched British agents and soldiers into the colonists homes and businesses ostensibly looking for proof of payment of the kings taxes and armed with general warrants issued by a secret court in London.

A general warrant did not name the person or place that was the target of the warrant, nor did it require the government to show any suspicion or evidence in order to obtain it. The government merely told the secret court it needed the warrant -- the standard was governmental need -- and the court issued it. General warrants authorized the bearer to search wherever he wished and to seize whatever he found.

The Fourth Amendment requires the government to present to a judge evidence of wrongdoing on the part of a specific target of the warrant, and it requires that the warrant specifically describe the place to be searched or the person or thing to be seized. The whole purpose of the Fourth Amendment is to protect the right to be left alone -- privacy -- by preventing general warrants.

The evidence of wrongdoing that the government must present in order to persuade a judge to sign a warrant must constitute probable cause. Probable cause is a level of evidence sufficient to induce a neutral judge to conclude that it is more likely than not that the government will find what it is looking for in the place it wants to search, and that what it is looking for will be evidence of criminal behavior.

But the government has given itself the power to cut constitutional corners. The Foreign Intelligence Surveillance Act, the Patriot Act and the Freedom Act totally disregard the Fourth Amendment by dispensing with the probable cause requirement and substituting instead -- incredibly -- the old British governmental need standard.

Hence, under any of the above federal laws, none of which is constitutional, the NSA can read whatever emails, listen to whatever phone calls in real time, and capture whatever text messages, monthly bank statements, credit card bills, legal or medical records it wishes merely by telling a secret court in Washington, D.C., that it needs them.

And the government gets this data by area codes or zip codes, or by telecom or computer server customer lists, not by naming a person or place about whom or which it is suspicious.

These federal acts not only violate the Fourth Amendment, they not only bring back a system the Founders and the Framers hated, rejected and fought a war to be rid of, they not only are contrary to the letter and spirit of the Constitution, but they produce information overload by getting all the data they can about everyone. Stated differently, under the present search-them-all regime, the bad guys can get through because the feds have more data than they can analyze, thus diluting their ability to focus on the bad guys.

Among the current presidential candidates, only Paul has expressed an understanding of this and has advocated for fidelity to the Constitution. He wants the government to follow the Fourth Amendment it has sworn to uphold. He is not against all spying, just against spying on all of us. He wants the feds to get a warrant based on probable cause before spying on anyone, because thats what the Constitution requires. The remaining presidential candidates -- the Republicans and Hillary Clinton -- prefer the unconstitutional governmental need standard, as does President Obama.

But Christie advocated an approach more radical than the presidents when he argued with Paul during the debate last week. He actually said that in order to acquire probable cause, the feds need to listen to everyones phone calls and read everyones emails first. He effectively argued that the feds need to break into a house first to see what evidence they can find there so as to present that evidence to a judge and get a search warrant to enter the house.

Such a circuitous argument would have made Joe Stalin happy, but it flunks American Criminal Procedure 101. It is the job of law enforcement to acquire probable cause without violating the Fourth Amendment. The whole purpose of the probable cause standard is to force the government to focus on people it suspects of wrongdoing and leave the rest of us alone. Christie wants the feds to use a fish net. Paul argues that the Constitution requires the feds to use a fish hook.

Christie rejects the plain meaning of the Constitution, as well as the arguments of the Framers, and he ignores the lessons of history. The idea that the government must break the law in order to enforce it or violate the Constitution in order to preserve it is the stuff of tyrannies, not free people.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.

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Chris Christie, Rand Paul and the Fourth Amendment | Fox News