Fifth Circuit Upholds the Warrantless Search of Cell Phone Location Information

By Wassem Amin, Esq.

In a 2-1 decision, the Fifth Circuit Court (link to full opinion in PDF) held that the Government does not need a warrant to obtain Cell Site Location Information (CSLI).  CSLI is the information that is obtained when a person’s cell phone “pings” nearby towers  of his or her service provider.  The cell phone pings the three nearest towers, thereby triangulating the owner’s approximate location.  In an area with high cell phone tower density, such as most metropolitan cities, the cell phone’s actual location could be within a few feet of the triangulation.

Cell phone service providers store the data gathered, including location data, every time a cell phone pings its towers.  In essence, the Government could use that information to determine a person’s location and movement over a period of time.

There is a split of opinion between Courts in the United States as to whether this information is protected under the Fourth Amendment’s Search & Seizure Clause–which would trigger the warrant and probable cause requirement.  The Government, in almost all cases that have been appealed so far, and in this case, relies on the antiquated Stored Communications Act (SCA), specifically Section 2703(d) to obtain this information without a warrant.  Also know as a 2703(d) order, this provision allows the Government to obtain a person’s CSLI if it can show “specific and articulable facts” that it needs it–a standard that is far less than probable cause.

In this case, what was especially alarming is that the Government contends that this location information is only obtained when a user makes a phone call.  However, a cell phone pings its towers not only when making a call, but every time it uses data services.  The ubiquity of smartphones in today’s society makes this especially problematic.  Most smartphones automatically use data to update, for example, a user’s email.  This continuous communication between the cell phone and the service provider’s towers allows the Government to precisely track a person’s past movements—and predict future ones.

The reasoning used by the Fifth Circuit indicates that the Court simply does not understand the way CSLI works and, in fact, many other courts, such as the Sixth Circuit, do not as well.  In affirming that the Government can continue to obtain CSLI records without a warrant, it noted the Government’s assertion that CSLI is transmitted only during phone calls.  Relying on that fact, the Court goes on to say that since this information is voluntarily transmitted by the user, the user loses his or her “reasonable expectation of privacy” that is required under the Fourth Amendment.

The wide divergence in opinion between Courts is in part because of the fact that there were no smart phones or even wide spread consumer cell phone use when the SCA was enacted.  The SCA is an antiquated statute that must be overhauled in order to address, and prevent, use of CSLI without a warrant by the Government.

The Fifth Circuit’s holding demonstrates the need for the United States Supreme Court to clarify the Fourth Amendment’s applicability in this area–an opportunity it side-stepped in US. v. Jones. The ambiguity of the current law necessitates that the inquiry be answered on a case-by-case basis by thousands of different magistrate judges—many of whom who have their own understandings as to what is private or not and may lack the necessary technological expertise to ascertain what kind of information is disclosed.

*The opinions expressed in this post are that of the Author’s and do not necessarily reflect the Firm’s views.

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US Supreme Court: K-9 Dog Sniff Sufficient to Establish Probable Cause

On February 19, 2013, the Supreme Court decided the case of Florida v. Harris, and held that use of a drug dog to establish probable cause to search a vehicle does not violate the Fourth Amendment of the United States Constitution.

Facts: Respondent was pulled over by a law enforcement officer for a routine traffic stop.  While speaking to the respondent, the officer noticed that the respondent was becoming increasingly nervous and also observed an open beer can.  Respondent refused the officer’s request to search the vehicle; the officer subsequently executed a sniff test with his trained narcotics dog, Aldo.  The dog alerted at the driver’s side door, leading the officer to determine that he had probable cause to search the vehicle.  The search did not provide anything that the dog was trained to detect, but did reveal ingredients that are used to manufacture methamphetamine.  When the respondent was released on bail he was pulled over by the same officer who again had Aldo do a sniff of the vehicle, this time producing nothing.  The respondent moved to have the evidence from the stop suppressed, arguing that the officer did not have probable cause to search his vehicle based on the dog’s alert.  The trial court held that the officer had probable cause and denied the motion to suppress.  The respondent then entered a no-contest plea, reserving the right to appeal the trial court’s ruling.  After an intermediate state court affirmed, The Florida Supreme Court reversed.

Florida Supreme Court: The Florida Supreme Court held that the officer lacked probable cause to search the defendant’s vehicle under the Fourth Amendment.  The court went on to say that “When a dog alerts, the fact that the dog has been trained, and is certified, is simply not enough to establish probable cause.”  The court held that the State needed to produce a wider array of evidence to demonstrate a dog’s reliability.  The Florida Supreme Court gave several examples: the dog’s training and certification records; an explanation of the meaning of the particular training and certification; field performance records; and evidence concerning the experience and training of the officer handling the dog.

Supreme Court’s Ruling: The Court began by tracing the history of probable cause and establishing the foundation for the Courts decision.  The Court stressed that, in determining whether the State has met the probable cause standard, the Court has consistently looked to the “totality of the circumstances” test.  Foreshadowing its ultimate decision, the Court noted that in Gates, the Court abandoned the old test for assessing the reliability of informant’s tips “because it had devolved into a “complex superstructure of evidentiary and analytical rules.” (1)  The Court continued, describing probable cause as a “fluid concept-turning on the assessment of probabilities in any particular factual context-not readily, or even usefully, reduced to a neat set of legal rules.”  The Supreme Court determined that this is exactly what the Florida Supreme Court did in its decision, created a strict evidentiary checklist, which requires the state to mark off each item.

Rather than having the “strict evidentiary checklist” that the Florida Supreme Court determined was the best approach, the Supreme Court held that evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.  “If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume that the dog’s alert provides probable cause to search.”

Regarding a probable-cause hearing on a dog’s alert, the Court gave guidance to the lower courts on how these should be administered.  The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure.  After evaluating the proffered evidence to decide what all the circumstances demonstrate; if the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause.  However, if the defendant has challenged the State’s case, then the court should weigh the competing evidence.  Overruling the Florida Supreme Court test, the Court once again stated that the question is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonable prudent person think that a search would reveal contraband or evidence of a crime.

(1)    Illinois v. Gates, 462 U.S. 213, 235 (1983)

Supreme Court Continues Trend of Protecting Individual Fourth Amendment Rights

On February 19, 2013, in Bailey v. United States, the Supreme Court issued an opinion limiting police officer’s authority to detain an individual incident to the execution of a search warrant.  The decision is another example in recent history of the Supreme Court’s refusal to limit the Fourth Amendment.

Facts

While police were preparing to execute a warrant to search a basement apartment, detectives conducting surveillance in an undercover police vehicle located outside the apartment observed two individuals leave the gated area above the apartment, get in a car and drive away.  The detectives waited for the men to leave and then followed the car approximately a mile before stopping it.  Keys to the apartment were found on the petitioner who initially informed police that he resided in the apartment before denying it when informed of the search.  The District Court denied the defendant’s motion to the apartment key and statements he made to the detectives under Michigan v. Summers (1).  The Second Circuit affirmed the decision and the Supreme Court granted certiorari.

History

The Fourth Amendment provides the right of every citizen to be secure in their persons against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.  A general rule on the Fourth Amendment is that Fourth Amendment seizures are “reasonable” only if based upon probable cause “to believe that the individual has committed a crime.  In Michigan v. Summers, the Supreme Court established an exception to this general principle and defined an important category of cases in which detention is allowed without probable cause to arrest for a crime.  The rule established in Summers, is that the law permits officers executing a search warrant “to detain the occupants of the premises while a proper search is conducted.”  This rule is unique as it extends farther than other exceptions to the Fourth Amendment in that it does not require law enforcement to have particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers.

In Summers and the cases that followed, the occupants detained were found within or immediately outside a residence at the moment the police officers executed the search warrant.  However, in the present case petitioner left the apartment before the search began and the police officers waited to detain him until he was almost a mile away.  Thus, the Court must decide whether the reasoning the Court used in Summers can justify detentions beyond the immediate vicinity of the premises being searched.

When Summers was decided, the Court reasoned that there were three important law enforcement interests that justify detaining an occupant who is on the premises during the search warrant’s execution.  (1) The safety of the officers and the need to detain the current occupants so they can search without fear that the occupants will become dangerous or frustrate the search.  (2) The facilitation of the completion of the search, if an occupant is free to move around during the search they may potentially obstruct the search or destroy evidence.  (3) The interest in preventing the flight of the occupants.

Analysis

The Court addressed all three interests established in Summers and applied the facts of the present case to those interests.  The first interest, officer safety, was not at risk because petitioner was away from location of the search and further, he was not even aware that a search was being conducted.  Additionally, if he had returned to the scene and did pose a threat, he would have been able to be lawfully detained because he was on the premises.  Addressing the second interest regarding the facilitation of the search, an individual who is not on the premises when the search is being conducted cannot obstruct a search or destroy evidence.  Finally, in addressing the concern of potential flight, the court said that if law enforcement is able to use flight as an excuse to apprehend occupants without any limitations, a suspect may be able to be seized 10 miles or further away from their house.  The Court then quoted a former Supreme Court case saying “the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.” (2)

The Court also emphasized the fact that the intrusion on personal liberty of a detention away from the premises of one’s home is significantly greater than the intrusion on an individual’s liberty while they are on their premises or inside their home.  When someone is apprehended in their yard or even inside their home, it does not raise the level of the public stigma or indignity associated with the search of the home itself.  However, when one is detained away from their home there is an additional level of intrusiveness.  Even if it is not an arrest it will appear to the public as a full-fledged arrest.  This is another important reason why the decision the Court established in Summers, must be limited and not used by law enforcement as a vehicle to apprehend occupants of a home even if they are not at their home during the search.

(1)    Michigan v. Summers, 452 U.S. 692 (1981)

(2)    Mincey v. Arizona, 437 U.S. 385, 393 (1978)

Is a Dog-Sniff Alert Sufficient to Establish Probable Cause?

On October 31st, 2012, while the rest of the country will be busy celebrating Halloween, the Supreme Court of the United States (SCOTUS) will face the haunting and controversial question of whether a dog-sniff alert is sufficient for establishing probable cause.  The two cases, both out of Florida, touch on one of a myriad of issues that must be resolved as SCOTUS defines the contours of our Fourth Amendment rights.  The impact of the court’s ruling will have reverberations and consequences on the law enforcement community and criminal trials for years to come.

Florida v. Harris[1]

In the first case, Clayton Harris was driving with an expired tag, according to Deputy Wheetley.  Following a valid stop, Deputy Wheetley noticed Harris acting visible nervous.  Moreover, there was an open container of alcohol in the cup holder.  Harris denied the Deputy’s request to search the vehicle.  The Deputy retrieved a K-9 narcotics detection dog.  The K-9 sniffed the car and alerted Deputy Wheetley of narcotics.

Harris was asked to exit the vehicle while a search of the vehicle was conducted.  The search yielded narcotics and other contraband.

The trial court denied the Defendant’s motion to suppress and found there was probable cause to search.  The First District Court of Appeal affirmed.  The Supreme Court of Florida reversed the opinion of the First District.  The United States Supreme Court granted certiorari to the State of Florida to review the judgment of the Supreme Court of Florida.

Florida v. Jardines

In Jardines, Florida law enforcement officials received a tip that the defendant was growing marijuana inside his home.  They then brought a drug dog to the defendant’s home, and after the dog indicated that there was marijuana inside, the police entered and found the plants.  The Florida Supreme Court held that the use of the dog without a warrant violated the defendant’s Fourth Amendment rights and even if a drug dog alerts the police that there are narcotics inside, a warrant is still required.  The rationale behind the Florida Supreme Court’s ruling was that if law enforcement officials are able to conduct a test such as this without any prior showing of wrongdoing, there is nothing to prevent the officials from doing this at any civilian’s home based on little to no evidence.

Implications

Under the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

SCOTUS has previously ruled that a dog sniff in and of itself is not a search, based largely on its non-intrusive nature[2]. In Florida v. Harris, the dog sniff was not the search; it was, however, the basis for probable cause justifying the vehicle search.  The Supreme Court of Florida held that evidence of a K-9’s training, qualifications, and certifications are insufficient to establish the dog’s reliability to determine probable cause.

Other federal courts weighing in on this issue has determined that an alert by a well-trained narcotics detection dog does, in fact, provide probable cause.[3]

Should Florida v. Harris be upheld, will that invite more challenges to K-9s used to track felons and detect explosives?  Will this limit the usefulness of dogs in a law enforcement capacity?

Massachusetts treatment of the issue

Massachusetts has held that a dog sniff will usually suffice as the basis of probable cause[4]. However, when the dog is the sole basis of the search under the “totality of the circumstances” test, the government must show why the particular dog was reliable.  This determination focuses heavily upon the dog’s qualifications: certifications, training, experience, and success rate.

Infallible dog theory

In a dissenting opinion regarding a dog-sniffing case, Justice Souter once quipped: “The infallible dog, however, is a creature of legal fiction.”[5] He went on to describe the error rates of dogs and their limited reliability.  Indeed, despite their usefulness, there are numerous issues when law enforcement officials rely too heavily upon a dog sniff.  The first is the dog’s qualifications, their training, success rates, etc.  A second consideration is the role of the handler.  How qualified is that handler?  How well do they understand the dog they are handling?  Finally, what was the alert the dog gave – passive or aggressive?  Was it interpreted properly?

The role of dog sniffs in the context of Fourth Amendment rights continues to evolve.  Florida v. Harris will be a seminal case in Fourth Amendment jurisprudence and will undoubtedly affect judges, attorneys, and law enforcement officials moving forward.

Editor’s Note – Updated on October 31, 2012.

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[1] http://sblog.s3.amazonaws.com/wp-content/uploads/2012/01/HarrisUSSC-CertPetFinal.pdf

[2]United States v. Place, 462 U.S. 696, 706-07 ( 1983).

[3] U.S. v. Sentovich, 677 F.2d 834 (11^th Cir. 1982); U.S. v. Robinson, 390 F.3d 853 (6^th Cir. 2004); U.S. v. Parada, 577 F.3d 1275, 1282 (10^th Cir. 2009).

[4] Commonwealth v. Matias, 440 Mass 787, 793 (2003).

[5]Illinois v. Caballes, 543 US 405, 412 (2005).

National Security Letters: Circumventing the Warrant Requirement or Legitimate Law Enforcement Tool?

National Security Letters (NSLs) are a type of administrative subpoena issued by the FBI used in terrorism and espionage investigations. They are used to obtain subscriber and transactions information from third-parties (communications providers, financial institutions, and consumer credit agencies).

Since the attacks on September 11^th and subsequent enactment of the Patriot Act, the use of NSLs by the intelligence community has been on the rise. In 2000, there were 8,500 requests. That number ballooned to 49,000 in 2006.

NSLs have been the subject of debate in the legal community on both constitutional grounds and the methods in which they are administered. There have been challenges to the constitutionality of NSLs and, as a result, amendments to the legislation authorizing their use. The use of NSLs and the debate surrounding them continue to evolve.

An NSL vs. a search warrant

A search warrant is only granted after a showing of probable cause before a neutral magistrate. There is no such requirement for a NSL. Moreover, the subject of the search is never informed of the investigation. Finally, the scope of the search can be broader under a search warrant than under an NSL.

Types of NSL

There are five types of NSL. The first two were created in 1986: under the Electronics Communications Privacy Act and the Right to Financial Privacy Act. The third and fourth types were created in the mid-90s: one under the Fair Credit Reporting Act, the other under the National Security Act. The fifth type was also authorized under the National Security Act.[1]

Commentary

The Patriot Act did not create NSLs, but expanded their scope. Under the Patriot Act, Congress changed the standard under which an NSL may be issued from “specific and articulable facts giving reason to believe” to merely “relevant.” Not surprisingly, as a result of this expansion, the use of NSLs has grown exponentially. This overbroad authority and pervasive practice infringes on the privacy rights of innocent citizens. Through NSLs, the FBI is able to collect massive amounts of data on ordinary citizens with no links to terrorism.

Proponents of NSLs argue that they are used only during the course of a duly authorized national investigation. NSLs are vital to the FBI’s ability to investigate a subject without tipping off the subject, as the presentation of a search warrant would. The information NSL allow the FBI to obtain are basic information about the subjects, their finances and who they are interacting with. The information obtained from NSLs is limited and the Supreme Court has ruled that information is not constitutionally protected[2]. NSL were used as a part of every significant national security investigation.

A troubling aspect of NSLs are the “gag” orders. NSLs generally contain language informing recipients that they are not permitted to inform the subject about the NSL or what was requested. After successful legal challenges on First and Fourth Amendment grounds[3], Congress amended the law to allow recipients to challenge NSLs. Moreover, it required the FBI to prove that disclosure of an NSL would harm a national security case.

There are also concerns about how these NSLs are administered. Three Department of Justice IG reports found misuse and mismanagement. There is also a lack of independent oversight.

Proponents argue that, although there have been internal controls breaches, most of the errors discovered were non-substantive, and there were no instances of intentional misuse. Morever, the FBI continues to examine, evaluate and improve its policies and procedures the FBI employees must follow to mitigate risk. There are training requirements for all FBI employees. They point out that all NSLs must be approved by a high-level FBI official. Finally, proponents argue that the ethical requirements of an FBI attorney responsible for approving an NSL act as an effective internal control.

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[1]http://www.abajournal.com/magazine/article/national_security_letters_building_blocks_for_investigations_or_intrusive_t/

[2] United States v. Miller, 307 U.S. 174 (1976)