Joy RadiceUT College of Law1505 W. Cumberland Ave.Knoxville, TN 37996Phone: (865) 974-6773Fax: (865) 974-6782E-mail: jradice@utk.edu

WHEN THE 4TH AMENDMENT AND

TECHNOLOGY COLLIDE

What will we cover?

DNA Collection Recording DNA in CODIS

Electronic Surveillance: Slap on GPS – adding a GPS monitor to a car Cell Phone Site Location – where we are when we use our phones

Searching technology that we carry Incident to arrest At the border

4TH AMENDMENT AND TECHNOLOGY

Cell Phone SearchesDNA CollectionCell Site LocationGPSPen Registers

WHAT DOES THE CONSTITUTION PROTECT?

Constitution

Statutes

WHERE DOES THE PROTECTION COME FROM?

Smith v. Maryland, 422 US 735 (1979)Can record telephone numbers – no judicial

review necessary.No 4th Amendment Protection

Congressional response:Need court to say that the Information will be RELEVANT

So not ___________________

PEN TRACKERS/ TRAP AND TRACE

Maryland v. King133 S.Ct. 1958 (2013) King arrested in the Spring of 2009 for “menacing

a group of people with a shotgun.” DNA taken as part of booking procedure July 2009 – DNA uploaded in Maryland DNA database Three weeks later: a match to an unsolved rape case

DNA COLLECTION

Permits DNA collection from individuals charged with a crime of violence or an attempt to commit one; or burglary or attempt to commit burglary

Only after probable cause hearingDNA sample destroyed if no p.c. or case does not result in a conviction

Only for identification (no familial matches)

MARYLAND DNA COLLECTION ACT

Identification - Modern-day fingerprintsSafety of personnel and detaineesGuaranteeing that the accused available for

trialExonerationAct guards against further invasion

GOVERNMENT INTERESTS

DISSENT(SCALIA, GINSBURG, SOTOMAYOR & KAGAN)

At any rate, all this discussion is beside the point. No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving. A search incident to arrest either serves other ends (such as offi cer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest).

Today's judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who fl ies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver's license, or attends a public school. Perhaps the construction of such a genetic pan- opticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.

US v. Jones Attaching a GPS device to a vehicle and then using

the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment.

Tied to common-law trespass

GPS TRACKERS

Scalia’s opinion: shifts conversation away from Katz’ reasonable expectation of privacy test: Katz – public phone wiretap not allowed without a

warrant. 4th Amendment protects persons and their private conversations

The 4th Amendment protects people, not places Concerned with government trespass on persons,

houses, papers and effects “the government physically occupied private property

for the purpose of obtaining information.”

GPS TRACKERS

Davis v. United States (2011) expanded the application of the good-faith exception to the Fourth Amendment exclusionary rule. The Court held that the exclusionary rule does not apply to Fourth Amendment violations when offi cers act in objectively reasonable reliance on binding precedent that is later overturned.

U.S. v. Fisher (March 7, 2014) – We determine that the police had an objectively reasonable good-faith belief that their conduct was lawful and was sanctioned by then binding appellate precedent, and thus, the exclusionary rule does not apply.

6TH CIRCUIT CASE:GOOD FAITH EXCEPTION

CELL PHONE SITE LOCATION

Collect real-time and historical data

Real-time – every 2 seconds Call phone company personnel Internet portal

Historical Data Only when call is made and received How long do companies hold the data

How law enforcement do this: Ask for data Ex parte order – specific and articulable facts that the phone

connects to an investigation

CELL PHONE SITE LOCATION

Business record No 4 t h Amendment protection Not government doing it Look for a statutory protection

Other phone areas Photos – geo-tag Location services – yelp

What to do: Look at order or warrant Look at user agreement Was there a legitimate business need? Discovery letter to government - general Go to the carrier with a 17C order - specific

Co-conspirator/co-defendant witnesses Client

CELL PHONE SITE LOCATION

Chimel v. California, 395 U.S. 752 (1969)

U.S. v. Robinson, 414 U.S. 218 (1973)

New York v. Belton, 453 U.S. 454 (1981)

Thornton v. U.S., 541 U.S. 615 (2004)

Arizona v. Gant, 556 U.S. 332 (2009)

4TH AMENDMENT PRIMER FOR SEARCHES INCIDENT TO ARREST

Chimel v. California, 395 U.S. 752 (1969) – allow for search incident to arrest to prevent the destruction of evidence or protect offi cer safety.

  U.S. v. Robinson, 414 U.S. 218 (1973) – Bright line rule: Police

can open closed containers when searching incident to arrest without suspicion that the contents of the container could be illegal.

New York v. Belton, 453 U.S. 454 (1981) – Bright line rule: Police, folling a lawful arrest can search an entire car, including the passenger compartment, and any object in the car.

Thornton v. U.S., 541 U.S. 615 (2004) – Police allowed a search incident to arrest of a vehicle that the arrestee recently occupied.

STRETCHED DOCTRINE BEYOND ITS BREAKING POINT – Scalia in concurrence

4TH AMENDMENT AND SEARCHES INCIDENT TO ARREST

Arizona v. Gant, 556 U.S. 332 (2009) – “reasonable to believe evidence relative to the crime of arrest might be found in the vehicle” or arrestee is unsecure and safety is concerned. Narrowing the New York v. Belton rule which appeared to authorize the searching of not just the passenger compartment but everything within that space “when there is no basis for believing evidence of the off ense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals.” Indeed the character of that threat implicates the central concern underlying the 4 t h Amendment – the concern about giving police offi cers the unbridled discretion to rummage at will among a person’s private eff ects.

I l l inios v. MacArthur, 531 U.S. 326 (2001) – warrantless seizure of an individual to prevent him from entering his home destroying evidence while the police waited for a magistrate to issue a warrant.

Should police be able to search?Why or why not?

CELL PHONES INCIDENT TO ARREST

U.S. v. Wurie Observed drug sale Flip Phone (2 phones taken) Call log

U.S. v. Riley Expired tags Smartphone Pictures showed evidence of involvement in a shooting

Arguments on 4/29

CELL PHONE CASES TO BE DECIDED

Can the police search without warrant?

What about fingerprint protection?

WHAT IF THE PHONE IS PASSWORD PROTECTED?

THE BORDER SEARCH EXCEPTION

Warrantless searches are permissible for a person leaving the country.

U.S. v. Ramsey 431 U.S. 606 (1977)

What about phones and laptops?

THE BORDER SEARCH EXCEPTION

Diff erent than other containers that you travel with?Should some level of suspicion be required?

THE BORDER SEARCH EXCEPTION

U.S. v. Arnold, 533 F.3d 1003 (9 th Cir. 2008).

Customs and Border protection and Immigrations and Customs Enforcement released policy statements endorsing the Arnold rule.

Directives allow full digital copies and indefinite storage.

Between Oct. 2008 and June 2010, the electronic devises of over 6,671 travelers were searched.

How far does this go?

THE BORDER SEARCH EXCEPTION

State v. Cotterman (9 th Circuit)

U.S. v. Stewart (6 th Circuit) on Sept. 3, 2013. Theodore Stewart was entering the United States from

Japan, when he ran into Customs and Border Protections (CBP) agents at the Detroit Metropolitan Airport. His "standoffi sh" and "confrontational" responses to their routine inquiries let them to believe that something was amiss, and led to a search of his belongings and computers.

"A routine border search of a laptop computer is not transformed into an 'extended border search' simply because it is transported twenty miles beyond the border and examined within twenty-four hours of the initial seizure.”

EXTENDED BORDER SEARCH DOCTRINE

USA v. Alvarez (8:13-cr-009) disallowing cell phone records and the suspects’ statements.. Result: The Northern District U.S. Attorney's Offi ce dismissed the indictments.

At the station, Judge McAvoy said the agents opened the cellphones and extracted telephone numbers and messages. The agents acted without the women's permission or warrants.                                                                                                      

                                                                                                                                                                                                                                                                                                                                                                                                                                                                          "These actions amounted to a search that was not justifi ed by any

exigent circumstance and not necessary to protect any offi cer's safety," the judge wrote.                                                                                                                                                              

The U.S. Court of Appeals for the Second Circuit has not yet ruled on the question of warrantless searches of cell phones. But he said the court held in United States v. Galpin, 720 F.3d 436 (2013), that the search of a computer hard drive was "akin to a residence in terms of the scope and quantity of private information it may contain.”                                                                                          

NOT THE END OF THE CONVERSATION?

Congress is currently considering the E-mail Privacy Act (HR  1852), a bi-partisan bill that would update the Electronic Communications Privacy Act (ECPA).  

                              The E-mail Privacy Act (HR 1852) would ensure that

all government agencies obtain a warrant before accessing personal and private online communications.  

A POSSIBLE AMENDMENT TO THE E-MAIL PRIVACY ACT

Do research!

EFF.org

Federal Public Defender website

Use Experts!

Con Law blog

Crim Profs blog

WHERE TO GO FOR HELP: