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Criminal Appellate & Post-Conviction Services

Search and Seizure

Canadian Supreme Court Finds Exceptional Privacy in Computers

Hats off to the Canadian Supreme Court in Regina v Vu, 2013 SCC 60 (2013) for recognizing what so many American courts don’t seem to get -- that computers are different. Police are now routinely seeking (and unfortunately getting permission) to search everyone’s computers when they have probable cause of any evidence of crimes. The Canadian Supreme Court said that there has to be individualized probable cause to search a computer and that the police cannot get to its contents by virtue a general search warrant to search a home.

NYT: Law of Cell Phone Searches is a Mess!

There was an interesting article in today’s New York Times about the horrible mess that the law of cellphone searches is currently in. The problem is that courts are moving by analogy to prior technology (or brick and mortar items) and none of these items are perfectly applicable. Our cell phones are more than the old Ma Bell Rotary Dial phone. They are not like the standard items people leave laying around their car or the wallet which can be inventoried in a police booking. They contain deep personal information and should be regarded as having special protection under our Forth Amendment.

SCOTUS Hearings Argument Concerning Government's Large Scale Wiretapping

Lyle Denniston over at SCOTUS Blog has an interesting article on Monday’s oral arguments in Clapper v Amnesty International, Supreme Court No. 11-1025. Clapper is a challenge to the Government’s very broad wiretapping operations that they are carrying out in the name of terrorism prevention. The Government has been successfully defending these suits by arguing that the people bringing suit can’t prove they were the victims of illegal eavesdropping and therefore the suits shouldn’t go forward. In one case where the Government accidentally admitted the eavesdropping, they were able to claw evidence back stating the attorney could not use the evidence accidentally released. Al Haramain Islamic Foundation, Inc. v. U.S. Dept. of the Treasury, 660 F.3d 1019 (9th Cir. 2011). Here is another interesting article covering this case and the history of the line of litigation generally.

Great Computer Search Decision from Canada

Hats off to the Canadian Supreme Court for a very important ruling.. On the 19th, the Court held in R v Cole, 2012 SCC 53 that an individual has a heightened privacy interest in their computers. They spoke to the personal information we store on our machines and then found that an individual who brings his computer in for repair maintains a privacy interest in the computer’s contents. The police may not “piggyback” on the limited release of the computer to the technician for service. Canadian Supreme Court rulings may be cited by U.S. Courts for their advisory value. Trans-Tec Asia v M/V Harmony Container, 518 F3d 1120 (CA 9 2008) (Canadian ruling is “instructive”). The ruling cites to many U.S. decisions and will therefore have stronger advisory value than most foreign rulings.

California Legislature Requires Warrant for Cell Phone Searches

Overturning a California Supreme Court decision to the contrary, the California Legislature has required police to get warrants supported by probable cause to search people’s cell phones. During an automobile stop, police can easily search most vehicles based on the legally diminished privacy interest in these stops. Because of the mobility of automobiles and open nature of a passenger compartment, police have a variety of tools that can get them into the car. This includes protective searches, searches incident to an arrest, inventory searches, and “protective frisks.”

Our smart phones carry all sorts of personal information. In many ways, the thoughts in these devices are more personal than the thoughts an individual wrote in their diary (an area of law where the US Supreme Court had historically afforded significant privacy interests. Should the police be able to browse through these to their heart’s content? A number of software companies are offering tools that allow even the ordinary traffic cop to easily break through passwords on these phones search these portable computers to their hearts content. The California legislation is an important piece of legislation which the MIchigan Legislature should emulate with one exception. The statutory search incident to an arrest exception will encourage pretext arrests and makes no sense. Once the individual is in custody, there is no impediment to getting the warrant.

Do We Have a Reasonable Expectation of Privacy in Our Mobile Data?

Smartphones and mobile devices are becoming increasingly popular. Many people keep their emails, documents, and other private information on their Blackberries, iPhones, and iPads. Police officers are aware of this and want to pry.

Two disturbing developments call to the front stage the question of privacy. The first is the California Supreme Court’s ruling in
People v Diaz, California Supreme Court No. S166600 which declined to find any enhanced privacy interest in these devices. In Diaz, the Court ruled that the police could seize and search through these devices as part of an ordinary arrest. Presumably, this includes an ordinary traffic arrest.

Several years ago, the Michigan Court of Appeals ruled the same thing with respect to laptop computers.
People v Dagwan, 269 Mich App 338, 711 NW2d 386 (2006). There, the Court said that searching a laptop was ordinarily within the scope of a consent search. E.g. when an officer asks if he should look around the car, you are consenting to him booting up and looking at your emails.

As bad as this ruling is, a company specializing in password breaking software (Data Access) has decided to capitalize on this ruling by releasing a hand held password breaking tool that field officers can use to break into people’s
secured smartphones. Their press release overtly capitalizes on the Diaz ruling. This raises a disturbing problem for individuals who carry confidential data for a living. Is it ethical to carry privileged communication on your Blackberry or iPhone?

The California Bar Association just released an
ethics opinion suggesting that we (meaning lawyers) may need to leave these devices at home in order to protect client privacy. While this was not what they intended, they said that lawyers have to take steps to protect client privacy and be aware of the technology which makes our client’s data vulnerable. Now that we know that police can use a pretextual speeding ticket to pry into our client’s data, this may be the net result. Many years ago in Whren v United States, 517 US 806 (1996), the United States Supreme Court upheld the use of pretext based traffic stops. The combination of these rulings could be scary.

For a nice analysis about why courts are getting it wrong when they fail to recognize the unique privacy interests in electronic devices, see M.
Leach, Flyers Beware: The NInth Circuit Decision in United States v Arnold, Granted Customs Agents Access Into Your Laptops, 26 Cooley L Rev 307 (2009)
(requires fee to access article).

Michigan COA Rules that Vague Anonymous Tips Do Not Justify a Search

The Michigan Court of Appeals ruled that while searches can be justified based on anonymous tips, there has to be some showing of reliability. A bague anonymous tip alone is not enough for probable cause to search students car by assistant principal. People v Perrerault, Court of Appeals No. No. 288540.

Ohio Supreme Court Rules that Police Cannot Search Personal Electronics as Part of a "Search Incident to an Arrest"

On December 15, 2009, the Ohio Supreme Court ruled (4-3) that the police could not search a person’s personal electronics as part of a search incident to an arrest. State v Smith, Ohio Supreme Court No. 2008-1781. Read More...

SCOTUS Upholds Warrantless Entry of Home Based on Pretextual Medical Concerns of Officer

On December 7, 2009, the United States Supreme Court reversed the Michigan Court of Appeals ruling in People v Fisher, Docket No. 276439, 2008 WL 786515, *1 (Mich. App., Mar. 25, 2008). Michigan v. Fisher, Supreme Court No. 09-91. In Fisher, the Brownstown Township Police arrived at the defendant’s home on a public disturbance call. When the police arrived, they found the premise in “considerable chaos.” The officers knocked on the door and the defendant ignored them. Through the window, the police could see that the defendant barricaded the door. Police saw a cut on the Defendant’s hand and asked if he needed medical attention. The defendant was standing and per the Michigan Court of Appeals, the injury did not appear to be life threatening. The defendant simply told the police to leave and to get a search warrant. The officer forced his way into the home and was confronted by the defendant who pointed a rifle at them. Fisher was charged under Michigan law with assault with a dangerous weapon and possession of a firearm during the commission of a felony. The Michigan Courts ultimately affirmed the trial court’s ruling that the search was illegal.

Relying on its prior ruling in
Brigham City v. Stuart, 547 U. S. 398 (2006), the Court peremptorily reversed. Even though the State Court essentially found that the police officer’s excuse for entering the home (to provide medical assistance) was pretextual, the United States Supreme Court stated that the officer’s motives are irrelevant and that the a Court should not judge the officer’s decision with a hindsight determination. Justices Stevens and Sotomayor dissented.

UK Police Arresting Suspects to Get DNA in System

Yesterday’s Guardian newspaper reported that UK police officers were routinely arresting suspects just to get their DNA in the UK’s national DNA database. The UK was one of the first countries to engage in comprehensive DNA collection. Many states (including Michigan) have copied many aspects of the UK program. Read More...

Should a Warrant Be Required for GPS Monitoring of a Suspect?

Today’s New York Times had an interesting editorial about a case involving the Fourth Amendment and whether technical advances can obviate Fourth Amendment privacy interests. The question presented was whether police police should have to get a warrant before putting a GPS device on a suspect’s car. It is a cutting-edge civil liberties question that has divided the courts that have considered it. GPS devices give the government extraordinary power to monitor people’s movements. The New York Times believes that that a warrant should be required.

SCOTUS Overrules NY v Belton and Limits Auto Searches

Until very recently, the United States Supreme Court had been engaged in a pattern of reducing the amount of privacy that an individual had in a motor vehicle to practically nil. Because of the inherent mobility in most vehicles, the Court declared that the warrant requirement did not apply to a motor vehicle. The Court extended this rationale to discrete items in a motor vehicle such as purses in brief cases. In New York v Belton, the high court extended the protective sweep rationale of its earlier ruling in Terry v Ohio to the motor vehicle. Any place a motorist or passenger could theoretically lunge for a weapon could be searched with this protective sweep, even if the motorist or passenger had been separated from the vehicle.. In Arizona v Gant, the Court overturned Belton in a 4-1-4 decision with Justice Scalia offering a critical view of the entire “officer safety rationale” used to justify these warrantless searches. Arizona v. Gant, 07-542.Dividing 5-4, the Supreme Court ruled on Tuesday that police may conduct a warrantless vehicle search incident to an arrest only if the arrestee is within reaching distance of the vehicle or the officers have reasonable belief that “evidence of the offense of arrest might be found in the vehicle.”The ruling directly limits New York v. Belton,. In Belton, the Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident to that arrest, search the passenger compartment.” The Court affirmed the Arizona Supreme Court ruling for the defendant, Rodney Gant, on whom police found cocaine during an arrest for driving with a suspended license. The state court held that Gant could not have reached his car during the search and posed no safety threat to the officers, making a vehicle search unreasonable under the “reaching-distance rule.” applied in Belton.Justice Stevens’s opinion for the majority, which was joined by an uncommon coalition of Justices Ruth Bader Ginsburg, David H. Souter, Clarence Thomas, and Antonin Scalia, held that stare decisis cannot justify unconstitutional police practice, especially in a case — such as this one — that can clearly be distinguished on its facts from Belton and its progeny.In a concurring opinion, Justice Scalia disparaged that line of cases as “badly reasoned” with a “fanciful reliance” upon the officer safety rule. Justice Scalia was clearly the swing vote in the case, explaining that a “4-to-1-to-4 opinion that leaves the governing rule uncertain” would be “unacceptable.” In his view, the “charade of officer safety” in Belton, Chimel, and Thornton v. United States (extending Belton to all “recent occupants” of a vehicle) should be abandoned in favor of the rule that the majority ultimately adopts in its opinion.By contrast, the dissenting justices — Justice Breyer, who wrote his own dissenting opinion, and Justice Alito, whose dissent was joined by the Chief Justice and Justice Anthony M. Kennedy and was joined in part by Justice Breyer — would have adhered rigorously to stare decisis principles to maintain Belton’s “bright-line rule.” The dissenters predicted that the Court’s decision will lead to the unnecessary suppression of evidence and confusion by law enforcement officers.

Can Police Search Handhelds as Part of a Search Incident to an Arrest?

Sixth Circuit Withdraws Davis Ruling

Sixth Circuit Holds that Ordinary Lane Drift Does Not Constitute Probable Cause to Stop.

Michigan's Obstructed Vision Statute is Unconstitutional

SCOTUS Hears Pearson Case on Limits of the Consent Search Doctrine

The United States Supreme Court is hearing oral arguments in Pearson v Callahan, Supreme Court No. 07-751, which could greatly expand the authority of the police to search an individual’s home. Several federal appellate courts have adopted a doctrine referred to as the “consent once” exception to the Fourth Amendment. Under this doctrine, a single consent to search is deemed continuing as a matter of law unless it is expressly revoked. In a case coming out of the Tenth Circuit police are arguing that consent to allow an undercover informant into a home early in the evening constitutes consent for the police to break into the home later in the evening. Surprisingly, the officers have a significant amount of authority on their side. Under this approach, if the police can trick their way into the foyer they may have consent to search the bedroom. This case is scary.

Linda Greenhouse from the New York Times summarized the doctrine as follows:

Several federal circuits have adopted what has come to be called a consent-once-removed exception to the Fourth Amendment’s warrant requirement. The theory is that a suspect who consents to the entry of someone who is really an agent of the police is also, albeit unknowingly, agreeing to let the police enter as well. The police do not need a warrant to enter and search a home if they have the permission of a person authorized to give it.

To read Linda Greenhouse’s complete analysis of the issue,
click here. For the SCOTUS blog summary of the case and complete access to the briefs, click here. This case is a civil case and there is also a qualified immunity issue.

SCOTUS Hears Oral Arguments on Herring v United States: Is There a Good Faith Exception for Reliance on Information from Another Police Department

Today, the Court hears oral arguments in Herring v. United States, No. 07-513 which tests limits of probable cause. The Coffee County Alabama Sheriff’s Department was desperate to search Bennie Herring’s car. A deputy called the dispatcher to check for active warrants. Unfortunately, there weren’t any. Undeterred in his quest to pull a pretext search of Mr. Herring, the deputy asked the dispatcher to check with neighboring Dale County. Dale County initially told Coffee County there was a warrant. They were wrong. The question presented in Herring is whether the police officer’s “good faith” reliance on this incorrect information in his question to pull a bad faith pretext stop should have the search. The briefs have been filed and the case will be argued on October 8th. To read the SCOTUS Wiki article on the case and access the party briefs, click here.

Garbage In May Not be Garbage Out

The United States Supreme Court is going to hear a case which may expand the limits of probable cause. The Coffee County Alabama Sheriff’s Department was desperate to search Bennie Herring’s car. A deputy called the dispatcher to check for active warrants. Unfortunately, there weren’t any. Undeterred in his quest to pull a pretext search of Mr. Herring, the deputy asked the dispatcher to check with neighboring Dale County. Dale County initially told Coffee County there was a warrant. They were wrong. The question presented in Herring is whether the police officer’s “good faith” reliance on this incorrect information in his question to pull a bad faith pretext stop should have the search. The briefs have been filed and the case will be argued on October 8th. To read the SCOTUS Wiki article on the case and access the party briefs, click here.

The Limits to Consent