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