Category Archives: Criminal Law

Another Court Says the Fourth Amendment Doesn’t Apply to Credit Card Swipes

The U.S. Eighth Circuit Court of Appeals is among the latest courts to consider whether the police need a legal justification in order to swipe someone’s credit card. In a June decision, it took the popular view that examining a card in this way isn’t a Fourth Amendment “search.” According to this position, there’s no real difference between looking at the information on the front of a card and using a device to examine the magnetic strip on the back of it. (United States v. DE L’Isle, No. 15-1316 (8th Cir. 2016).)

To the Eighth Circuit and several other courts, an officer doesn’t need a warrant or other legal justification in order to swipe or scan a card. An officer who has legitimately accessed a card—as opposed to one who has, say, arbitrarily stopped someone on the street and snatched the card away—can run it through a machine in order to investigate its legitimacy.

In the case that led to the ruling, law enforcement came by a stack of credit, debit, and gift cards during a search after a traffic-stop-turned-arrest. Suspicious, as they tend to be when encountering big bunches of cards, officers scanned the plastic. The scans confirmed their suspicion of identity theft, exposing the cards as having either stolen information or no account information at all.

For more on the case, including the court’s rationale and potential differences in court rulings on this issue, see Can the Police Swipe or Scan Your Credit Card?

Federal Ruling Muddies the Law on Recording the Police

Police arrest iStock_000019659948XSmallConstitutional and criminal law are littered with nuances  and vagaries. But at least we’ve got a basic, First-Amendment rule on recording the police. To summarize:

Almost every court to consider the issue has determined that the First Amendment gives you the right to record (pictures, video, and audio) an officer in public while he is performing his duties. But that doesn’t mean you’re allowed to record if you’re doing so surreptitiously (secretly), interfering with the officer, or otherwise breaking the law. 

(Recording the Police: Legal?)

A recent federal-court decision, however, has gummed up the works. At least for the moment.

The case in question involves separate lawsuits by two citizens claiming Philadelphia police officers violated their rights. The first citizen, apparently interested merely in taking what he thought would be a good picture, photographed about 20 officers standing outside a home. The second citizen tried to videotape an arrest of a protestor at a rally. Each plaintiff has alleged subsequent mistreatment by the officers on hand. (See the opinion for more detail.)

The judge assigned to the case held last month that the First Amendment doesn’t give citizens the right to “photograph police absent any criticism or challenge to police conduct.” The judge essentially said that you can’t photo the police merely for the sake of photo’ing the police.

To observe that it’d be a big deal if this line of thinking were to catch on might be to understate. Think for a moment about some of the smartphone-documented police/citizen encounters in recent years.

The decision represents a significant break from the widely accepted rule noted above. But an appeal is apparently coming. And at least one expert expects the higher court—which is one step below the U.S. Supreme Court—to reverse the trial judge.

If it doesn’t, we’ll have much more to write about.

Kansas Supreme Court: Law Making It a Crime to Refuse DUI Chemical Testing Is Unconstitutional

By John McCurley

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Like all other states, Kansas has an “implied consent” law for drivers suspected of DUI (driving under the influence). These laws generally require that drivers arrested for driving under the influence submit to chemical testing for the purpose of determining whether and how much alcohol or drugs are in their bodies. (These tests typically involve the analysis of blood, breath, or urine.)

In most states, the consequences of refusing a chemical test are administrative—the driver’s license will often be suspended for a period of time and the driver might need to pay a fine or install an ignition interlock device. These administrative penalties for refusing testing are often in addition to any punishment for driving drunk, which is its own crime.

Kansas, however, is one of a handful of states that make it a separate crime–under at least some circumstances—to refuse a chemical test. So, until quite recently, some drivers in Kansas who drove drunk and refused testing could be convicted of both a DUI and test refusal.

Refusal Statute Struck Down

Generally, Kansas law makes refusing a chemical test a crime if the driver has at least one prior DUI conviction or instance of refusing a chemical test. A conviction carries mandatory jail time and can be a felony. (Kan. Stat. Ann. § 8-1025 (2015).)

But on February 26, 2016, in State v. Ryce, the Kansas Supreme Court decided that the law making it a crime to refuse a chemical test violates federal constitutional rights of drivers. The court explained that, under the Fourth Amendment’s prohibition against unreasonable searches and seizures, drivers have a right to refuse chemical testing. The law making refusal a crime violated that right, according to the court.

The decision means that Kansas drivers who refuse to submit to chemical testing can no longer be convicted of refusal as its own offense. (Refusal will, however, still likely lead to administrative consequences such as a suspended license.) It’s unclear how the decision will affect drivers already convicted of refusing a chemical test. (State v. Ryce, No. 111, 698, slip opinion.)

DUI Testing After Ryce

The Ryce decision has important implications for law enforcement. The case naturally led to another decision that was issued by the Kansas Supreme Court on the same day it decided Ryce. In the second case, the court found that an officer violated a DUI suspect’s Fourth Amendment rights by coercing him into submitting to a chemical test.

In the second case, the officer told the suspect that if he refused to take a chemical test, he would face criminal penalties equal to or worse than those resulting from a DUI conviction. The suspect consented to the testing, but later argued that it constituted an illegal search and seizure on the theory that he consented only after being threatened with criminal penalties. The court agreed that the suspect’s consent wasn’t freely given because the officer’s advisement to the suspect—that criminal penalties could be imposed—wasn’t true. (See State v. Nece, No. 111, 401, slip opinion.)

Now, in Kansas, refusing to submit to a chemical test isn’t a crime. Not only that, but officers can’t threaten criminal prosecution to get drivers to agree to testing. It remains to be seen whether other states that have laws criminalizing chemical test refusals will follow the Kansas Supreme Court’s lead.

DOJ’s New “Stingray” Policy Offers Protections, Limitations

iStock_000066456711_SmallLast year, the U.S. Supreme Court decided that police officers generally need warrants to search the cellphones of people they arrest. Earlier this summer, a federal court disagreed with some of its counterparts by holding that the government must typically get a warrant to inspect someone’s past cellphone location information. Now, in the latest example of the law scrambling to keep up with mobile phone technology, the Department of Justice (DOJ) has announced a policy on cell tracking devices.

The policy, unveiled last week, generally requires that officers get warrants before using “stingrays,” and that they let judges know when they intend to use the equipment.

Stingrays are suitcase-sized devices that mimic cell towers. By tricking cellphones into connecting with them, they reveal the phones’ whereabouts. But these trackers, which are strong enough to pass through walls and can interfere with calls, don’t connect with just one phone—they link up with all phones in the area. And they can grab not only location information, but also data like texts and emails. (The DOJ says the technology federal agencies use won’t capture this kind of material.)

Added Protection

The DOJ policy mandates that authorities regularly delete data they collect through stingrays. For instance, agents must erase it once they locate a suspect’s phone. If they don’t locate the phone, they must delete all data they’ve gathered at least once a day. But they’re actually supposed to hang on to some data, namely, the kind that could help prove a suspect’s innocence.

Exceptions—and Limitations

Like any rule, the DOJ policy has exceptions. First, officers may use stingrays without warrants in “exigent circumstances,” as where someone’s life is in immediate danger or someone is about to destroy evidence. Second, they can skip warrant requests in the face of the more ambiguous “exceptional circumstances.” These are situations “where the law does not require a search warrant and circumstances make obtaining a search warrant impracticable.” (DOJ Press Release.)

Newsweek reports that an example of “exceptional circumstances” is the FBI’s use of stingrays without warrants in public places, where the agency considers folks to lack reasonable expectations of privacy. The DOJ is quick to remind, however, that to invoke the exception, obtaining a warrant must be “impracticable.” Plus, the department notes that agents claiming exceptional circumstances will have to get both a court order and approval from agency higher-ups. But many contend that this kind of court order is remarkably easy to obtain; a warrant, on the other hand, demands the higher showing of probable cause.

Perhaps the biggest “exception” to the fresh stingray approach is really a limitation—it’s the fact that the policy doesn’t reach state or local law enforcement (though some states do require warrants for stingray use.) So, while federal bodies like the FBI, the Drug Enforcement Agency, and the Marshals Service might have to abide by these new rules for investigations within the U.S., your local police department won’t. And that’s no trivial distinction: The Washington Post reports that at least 53 agencies at the state or local level have bought stingrays.

Cellphone Location Information: Warrant Required?

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Update: In May 2016, the Fourth Circuit reconsidered the United States v. Graham decision “en banc.” The entire court, rather than a three-judge panel, gave the circuit’s final word on the case. The judges decided that it was not a violation of the Fourth Amendment for the government to obtain CSLI without a warrant. They relied heavily on the argument that cellphone users don’t have a reasonable expecation of privacy in CSLI because those users “voluntarily convey” the information by using their phones.

On Wednesday a federal appeals court held that the government generally needs a warrant in order to inspect one’s past cellphone location data. The three-judge panel from the U.S. Court of Appeals for the Fourth Circuit found that cellphone users have “an objectively reasonable expectation of privacy” in cell site location information (CSLI). (United States v. Graham, No. 12-4659 (4th Cir. Aug. 5, 2015).)

Where Were We?

In the case that led to the ruling, a federal jury convicted two men of charges related to several armed robberies in the Baltimore area. Officers nabbed the suspects shortly after the last robbery, then seized various items, among them their cellphones.

The government gathered court orders granting access to the phones’ CSLI. Pursuant to those orders, the phone’s service provider (Sprint/Nextel) handed over seven months’ worth of CSLI records. Prosecutors used those records to prove the defendants’ whereabouts at various times surrounding the robberies.

In the course of its opinion, the Fourth Circuit panel explained how CSLI works: A traditional cellphone communicates with cell sites whenever it sends or receives a call or text, while a smartphone might communicate with them more often due to functions like email. The phone typically connects to the nearest cell site because that site offers the strongest signal. Records of the sites to which a phone has connected therefore show the approximate whereabouts of the device—and its user—at precise moments in time. (Listeners to Serial will forgive the recap.)

Searching for a Standard

The government secured the location records through the Stored Communications Act (SCA). The SCA requires that the government get either a warrant or court order for a service provider’s subscriber account records.

Warrants demand probable cause, but SCA court orders can rest on what’s essentially reasonable suspicion, a lower standard. (The SCA allows for orders based on “reasonable grounds to believe” that records are “relevant and material” to an investigation.)

Despite its conclusion that warrants rather than court orders are necessary for CSLI disclosure, the Fourth Circuit panel actually upheld the search. The judges found that the good faith exception to the exclusionary rule applied because the government acted according to what were then established procedures. But at least in the Fourth Circuit, the law is now clear, meaning that officers and prosecutors won’t have this “out” the next time they try to grab CSLI.

Conflict in the Courts

Despite the ruling, the law on cell location data is anything but uniform. Some state courts, including the supreme courts of Massachusetts and New Jersey, have agreed that inspection of cellphone location information requires a warrant. (Com. v. Augustine, 467 Mass. 230 (2014), State v. Earls, 214 N.J. 564 (2013).)

On the other hand, a Fifth Circuit panel ruled in 2013 that the government doesn’t need a warrant to acquire historical CSLI. And the Eleventh Circuit agreed earlier this year. These courts have theorized that people voluntarily convey their location by using their cellphones. (In re U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013), United States v. Davis, 785 F.3d 498 (11th Cir. 2015).)

So, do the police need a warrant to see what your phone says about where you’ve been? That depends in significant part on where you’ve been.