Category Archives: Criminal Law

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

By John McCurley

iStock_000002600647Small

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?

stock

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.

Police Officers Can’t Search Hotel Records on Demand, but What Does That Mean?

On June 22, 2015, in Los Angeles v. Patel, the U.S. Supreme Court decided that cops can’t rummage through hotel records whenever they want. (576 U.S. ___ (2015).) The opinion, framed in terms of the hotel’s privacy interest rather than that of its guests, nixed part of a Los Angeles Municipal Code section.

The code section in question mandated that hotel and motel operators (1) maintain certain records about their guests and (2) allow police officers to inspect those records on demand. The second part is unconstitutional, Justice Sotomayor wrote, because it forces hotels to disclose records at law enforcement’s whim without any opportunity to object.

The Law

Los Angeles Municipal Code section 41.49 requires hotel operators to document a variety of information about their guests, like:

  • names and addresses
  • the number of people in each guest’s party
  • detailed vehicle descriptions for cars parked on premises
  • arrival and scheduled departure dates, and
  • room numbers.

Hotels have to store this kind of data for 90 days.

The Supreme Court was okay with these requirements. The problem, according to Sotomayor and the four Justices who signed onto her opinion, was a provision that forced hotels to open records to police officers without justification. Failure to comply was a misdemeanor carrying up to six months in jail and a $1,000 fine.

Independent Review

Courts have created fundamental exceptions to the Fourth Amendment requirement that police officers get warrants before conducting searches. Nevertheless, in general, a search conducted without a judge’s prior approval qualifies as unreasonable. The Patel Court stressed that this principle applies both to homes and most businesses.

One of the exceptions to what courts call “the warrant requirement” has to do with administrative searches. In broad terms, these are searches that serve some purpose other than typical crime control. Think of, on the one hand, a restaurant inspection to ensure health code compliance and, on the other, a drug house raid to gather evidence for criminal prosecution.

The Patel Court allowed for the fact that searches of hotel records serve a purpose other than criminal investigation—that they ensure that lodging providers keep records the way they’re supposed to. (People who are up to no good, the theory goes, are more likely to frequent hotels that don’t keep guest records.)

But even if hotel record inspections qualify as administrative searches, Sotomayor said, a hotel operator is owed an opportunity to have a “neutral decisionmaker” evaluate a search demand before the search takes place—or the operator is arrested for refusing.

Not Such a Big Deal

Sotomayor explained that inquisitive police officers could simply issue what’s called an administrative subpoena: a simple form demanding record inspection. In most instances, she surmised, the hotel operator would cooperate. But a hotel that objected to the search would be able to challenge the subpoena (move to “quash” it). Then that “neutral decisionmaker”—for instance, an administrative law judge—would decide whether the search should go through.

And fear not tampering, Sotomayor assured: An officer who reasonably suspects that a hotel will alter the sought-after records while a judge evaluates the propriety of the proposed search can guard them until the ruling comes down.

Not only that, but officers remain free to seek warrants authorizing records searches before approaching hotel owners. And they can of course search records without prior approval when there’s some kind of emergency—for example, where they have reason to believe a hotel guest has taken a hostage.

Sotomayor and company’s point was essentially this: Providing hotels with an opportunity for independent review before they have to hand over their records won’t thwart criminal investigation and will prevent overly broad, harassing intrusions. Sotomayor remarked that the now defunct code provision would have allowed a hotel to be “searched 10 times a day, every day, for three months, without any violation being found . . . .”

But Kind of a Big Deal

At first blush, the Patel decision might appear to affect only the hospitality industry. And all it does is provide hotels the option of challenging record-inspection demands; one has to wonder how often they’ll actually exercise it.

But as Professor Rory Little observes, the ruling is broad enough to require “an  ‘opportunity for precompliance review’ for virtually all governmental inspection programs.”

“This means that business owners who are confronted with an administrative subpoena to inspect their premises must have some opportunity to ‘question the reasonableness of the subpoena before suffering any penalties for refusing to comply.’”

So Patel doesn’t necessarily expand the privacy interests of hotel patrons. But it does bolster protections for businesses subject to government inspection.

In Child Abuse Case, Supreme Court Narrows Right to Confront Witnesses

iStock_000042944894_SmallIn the preschool lunchroom, a teacher notices that a three-year-old pupil has an eye that looks bloodshot. She asks him what happened; he says nothing, then claims that he fell. Shortly after, in a better-lit classroom, the teacher notices a series of marks on the boy. She gets other teachers involved, and they discover even more injuries. They ask the boy who hurt him. He mentions his mother’s boyfriend. The teachers, legally obligated to report suspected abuse, notify the authorities.

The boy cannot testify at the boyfriend’s trial for felony child abuse because of a state law about children younger than ten taking the stand. But state law allows prosecutors to introduce reliable hearsay by child abuse victims. The question is whether, despite the hearsay law, a teacher testifying to what the boy said violates the defendant’s right to confront the witnesses against him.

On June 18, in a case involving essentially the facts above, the U.S. Supreme Court answered this query in the negative. The Ohio v. Clark majority held that this kind of hearsay evidence doesn’t violate the Sixth Amendment’s Confrontation Clause. (576 U. S. ____ (2015).)

The Confrontation Right

In a 2004 decision, Crawford v. Washington, the U.S. Supreme Court limited the opportunities for prosecutors to use out-of-court statements to get convictions. (541 U. S. 36 (2004).) That case rested on the Confrontation Clause, which says, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

Specifically, Crawford established that prosecutors can’t introduce a witness’s “testimonial” out-of-court statements unless:

  • the witness isn’t available to testify and
  • the defendant had an earlier chance to cross-examine the witness.

The Court explained that a statement gets the “testimonial” tag if the main purpose of the conversation that produced it was to create evidence that could be used in lieu of the witness testifying at trial. Think of a police officer interviewing a witness at the stationhouse.

Not Testimony, but “Testimonial”?

In the Clark case, like so many others involving Crawford issues, the defendant hadn’t had a prior opportunity to cross-examine the now-unavailable witness. So, the admissibility of the child’s statements turned on whether they were testimonial.

The Clark Court decided that they weren’t, that their primary purpose wasn’t to create evidence to use against the defendant. The majority reasoned that the statements came about because of an “ongoing emergency” of potential child abuse. The teachers’ questions and the boy’s answers “were primarily aimed at identifying and ending the threat.”

The Court also cited the fact that:

  • the teachers didn’t tell the boy that his answers would be used to either arrest or prosecute the defendant
  • the boy never indicated that he intended for police or prosecutors to use his statements
  • the conversation was “informal and spontaneous,” and
  • the teachers asked about the injuries as soon as they discovered them, in an informal school setting (rather than, for instance, the setting of a police station).

The Court additionally noted the relevance of the boy’s youth: Because they don’t “understand the details of our criminal justice system,” very young children will “rarely, if ever” give “testimonial” statements. They simply don’t know enough to form intent that their statements be used as substitutes for trial testimony.

Another key point of the Clark decision was the role of the teachers—not police officers—as interviewers. The Court didn’t go as far as saying that statements to people other than law enforcement officers are never testimonial. But it came close: “Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers.”