Tuesday, September 30, 2014

Privacy in a Tech World: Cellphone Data Requires a Warrant

After Apple Inc. announced the release of the iPhone 6 models for September 19th, the tech community roared in excitement about all of the new capabilities, and what a new smart phone could do for them.  With more than 1.2 million apps available, it’s pretty much a guarantee that “there’s an app for that.”  Increasingly, many people use apps for issues they may wish to keep private, such as sending confidential emails, or more controversially, for the “sexting” phenomenon.

In 1979, it was established that law enforcement agencies can retrieve phone records without warrants.  A landmark Supreme Court case, Smith v. Maryland, held that the Fourth Amendment protection against unreasonable search and seizure does not extend to phone numbers.  Further, in 1986 Congress passed the Electronic Communications Privacy Act, which required cell service providers to allow access to cellular data, contingent on a court order or a subpoena.  Over the past three decades, there have been a few notable challenges to law enforcement obtaining cellular records, most concluding that a warrant is typically necessary, but all of which have pertained only to records of the phone’s usage and not necessarily what we may want to keep private on the phone itself.   Then came Riley v. California.

Riley announced the decision for two cases with similar facts.  First, for David Riley, who was stopped by police for an expired tag, where it was discovered his license had also expired.  Police searched his car and found two concealed, loaded guns, and seized Riley’s phone.  Riley was subsequently charged with a gang-related shooting using evidence obtained from his phone, which Riley unsuccessfully moved to suppress, and was later convicted.  Second, for Brima Wurie, who was witnessed making a drug deal from his car by law enforcement.  Officers arrested Wurie, seized his phone, and used information from the phone to find Wurie’s apartment.  Police used the information to obtain a warrant to search the apartment, which Wurie attempted to suppress on the basis that the search of his phone was unconstitutional.  The motion was denied, and Wurie was later convicted as well.

Chief Justice Roberts wrote the opinion for Riley, beginning with the exception to the Fourth Amendment’s requirement of a warrant for a search of someone who has been arrested. For someone “incident to a lawful arrest”, a search is allowed for the purpose of removing any weapons that the arrestee could use to avoid or resist arrest, injure a law enforcement agent, or escape capture.

The Court recognized modern cellphones as “such a pervasive and insistent party of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”  As such, they have taken on a place of increased importance that could not have been foreseen at the time the Fourth Amendment exception for warrantless searches was created.  Further, the Court noted that cellphones “place vast quantities of personal information literally in the hands of individuals.”  Calling them cellphones may be a misnomer, when they “are in fact minicomputers that also happen to have the capacity to be used as a telephone.”

Consequently, the Fourth Amendment exception for a search incident to a lawful arrest does not apply to cellphones.  Frankly put, the Court said, “[o]ur answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.”  However, the court also recognized that a cellphone could be searched without a warrant when “justified by exigent circumstances5 which is seemingly evaluated on a case-by-case basis.

Riley thereby gives us a limit on the intrusiveness of cellphone searches. While that limit is not as bright-line as the Court has attempted to make search and seizure rules in the past, given the exigent circumstances exception, most people can rest assured that sensitive information on your cell phone is now reasonably safeguarded. The takeaway is that cellphones must be treated differently from other personal property in any context where a search is conducted. The prudent attorney should always be skeptical of how information was obtained from a cellphone search. The cellphone-user can use their device as freely as they wish, knowing that those embarrassing texts won’t be in the purview of law enforcement during your average traffic stop.

Kyle Kemper
Staffer, Criminal Law Practitioner

5 See, e.g., Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298-299 (1967) (“The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.”).

Friday, September 26, 2014

“High Crime Area” Undefined

Map of US Murder Rate in 1965

The phrase “high-crime area” is often thrown around, but what does it mean exactly?  The term "high-crime area" was first used by the Supreme Court in Adams v. Williams, where the Court stated: "While properly investigating the activity of a person who was reported to be carrying narcotics and a concealed weapon and who was sitting alone in a car in a high-crime area at 2:15 in the morning, Sgt. Connolly had ample reason to fear for his safety." In a series of Fourth Amendment cases from Adams v. Williams to Illinois v. Wardlow, the Supreme Court of the United States has considered the character of the neighborhood to be one factor in finding "reasonable suspicion" to stop someone. Specifically, in Wardlow, the Court found that "officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation." 

In Brown v. Texas, the Supreme Court was asked to decide whether being confronted in a “high-crime area” alone was enough to justify a Terry stop.  The officers in Brown could only say that the appellant "looked suspicious," but could not articulate why. The Court eliminated this factor from consideration.  The only other factor the officer offered was that the appellant was in a high-crime area. The Court held that, standing alone, being in a high-crime area was "not a basis for concluding that appellant himself was engaged in criminal conduct," because the "appellant's activity was no different from the activity of other pedestrians in that neighborhood."  While stating that being in a high-crime area is insufficient to show reasonable suspicion, the Court did not exclude the factor from consideration, so long as the officer could point to other facts that differentiated the suspect from the community at large.

Although the Supreme Court does not allow the character of the neighborhood to be the sole justification for a stop based on reasonable suspicion, it has narrowed the totality of circumstances needed to two factors: "high-crime area" and unprovoked flight from police. 

After the Supreme Court's decision in Wardlow, courts could consider whether an area is a “high-crime area” in a Fourth Amendment reasonable suspicion determination. The problem is that the Supreme Court has never provided a definition and lower court decisions offer little guidance.

In Washington, D. C., “several arrests" has been deemed sufficient to title a location as a “high-crime area.” This criterion was observed in United States v. Lovelace. where officers testifying to making several prior narcotics arrests coupled with residents' complaints of narcotics dealing was sufficient to characterize that area as a "high-crime area." In James v. United States, a District of Columbia Metropolitan Police Officer pulled over a car that had just swerved near the officer's cruiser.  The stop occurred on a street described by the officer as "high crime, violent crime, it's high narcotics, it's high everything - burglaries, robberies."  When the officer approached the car, the driver looked at the officer and "kind of raised his body up a little bit, and then bent all the way down and then he sat back up."  This led the officer to believe that the driver was "pulling a gun from his waist and putting it under the seat."  A search incident to the stop resulted in the recovery of a gun, and James was charged with a series of gun offenses.  James moved to suppress the gun and lost.  On appeal, after noting that the "high-crime area" factor is "certainly relevant," the District of Columbia Court of Appeals stated “that is especially true in this case, given that the area where appellant was stopped was not just a ‘high crime' area, but an area known specifically for the type of activity - i.e., gun possession - of which [the officer] suspected appellant." Based on the near collision and the “high-crime area,” the District of Columbia Court of Appeals affirmed the trial court’s decision.

Mayes v. United States, provides yet another example of the pitfalls of imprecision and unreliability surrounding the term “high-crime area.” In Mayes, the officers approached a stopped car in front of a "notorious crack house" which they believed matched the description of a car used in a shooting the previous night.   At the motions hearing, the government offered evidence that the block on which the stop occurred was in a "high-crime area," generally, and that the house in which the defendants were parked in front of was, in particular, a "notorious crack house."  Defense council rebuked the government’s assertion and introduced testimony that showed that "the building was in fact a high-rent luxury apartment house with its own security fence," which housed mostly "professional people." Although the trial court rejected the officer's claim that the house was a "notorious crack house," it still "credited the testimony that the general area was a high crime area.  Further, the appellate court held that "the trial court was required, and so are we, to include in the [reasonable suspicion] calculus … the character of the neighborhood."

Mayes, Lovelace, and James highlight the difficulties that can arise when areas in our nation’s capital are described as high-crime and not supported by documented and quantifiable evidence. Moving forward practitioners should seek to investigate the foundation for such assertions. Statistics and trend analysis should be used in conjunction with officer testimony to support the designation of an area as “high-crime.”

Stephane L. Plantin
Staffer, Criminal Law Practitioner

Photo by Delphi234 via Wikimedia Commons

Tuesday, September 23, 2014

Recent Issues in Using Midzolam in Executions

File:SQ Lethal Injection Room.jpg
In late July, the United States Supreme Court lifted a stay issued by the Ninth Circuit that required the State of Arizona to provide information about its lethal injection drug cocktail to inmate Joseph Rudolph Wood.  Mr. Wood was executed that same day.  His death was characterized by reporters as taking more than two hours and he took more than 600 gasps for air.  Most executions are complete in ten or eleven minutes.  Mr. Wood’s lengthy execution comes on the heels of another lengthy execution where Mr. Dennis McGuire took more than 20 minutes to die in Ohio, and also repeatedly convulsed and fought for breath after being injected.  An inmate in Oklahoma took more than a half an hour to die in his execution.

Friday, September 19, 2014

Justified Homicide and the Diminishing Duty of Reasonability

In the wake of the Mike Brown shooting in Ferguson, Missouri, it is difficult not to reflect on the constant expansions of affirmative defense doctrines that seem to be increasingly lenient. Specifically, self-defense laws and the fleeing felon doctrine demonstrate how the law has steered away from “defending”, and has empowered the attacked to become the aggressor. By removing the duty to retreat, and not creating any sort of alternative action provisions to prevent deadly force, self-defense, in some states, has become a license to kill. The fleeing doctrine, on the other hand, allows trained law enforcement, which are skilled in using defensive methods to apprehend suspects, to use deadly force if the felon resists and flees. Instead of using other techniques to stop and subdue, deadly force is permitted if it is reasonable to believe that the officer is in danger of deadly force or physical injury, or if others are. While justifiable homicides are commonplace in our criminal law system, this shift from trained police to everyday citizens having these rights is concerning. On the one hand, there is a necessity to permit reasonable force to defend against injury/assaults on one’s person. On the other hand, where is the line between reasonable force and vigilante justice? When does that line begin to get disturbingly blurred at the hands of our judicial system? This entry will discuss state self-defense laws, their application in controversial cases, and potential reform efforts. 

Traditionally, the law allows the use of deadly force only when one reasonably believes that they are in imminent danger of death or serious bodily harm.  As it stands, the defense of self allows for individuals to use the necessary force to protect their person and their life. What is troubling is the constant expansion that states are using to create more lenient self-defense laws. From states that do not require there to be imminent danger of death to states that allow you to murder over property, the boundaries are constantly tested, pushed back, and blurred. This was exhibited in a study that showed the expansion of self-defense laws lead to more homicides by a significant 8%.

This 8% increase should raise eyebrows, as it directly impacts the role of the prosecutor.  That is an additional 600 homicides per year across states that have expanded the castle doctrine. Homicides are on the rise because they are “justified” through states permitting the use of unnecessary force. This will increase prosecutorial workloads. For those who are taken to trial, it takes up the court’s time, it is costly, and victims’ families are forced to listen to testimony that indicates deadly force was okay, even though the harm had passed. The prosecutorial role contains a duty to be an administrator of justice. That justice shouldn’t extend to self-proclaimed warriors, using the statutes as a shield to commit murder, but instead it should be used to ensure that self-defense is only allowed when there is a life to defend. These laws are tying the hands of prosecutors who wouldn't be able to bring forth a case where one of these expansions prevented it. So where is the accountability for those that intentionally manipulate the law in order commit these crimes?

In Texas in 2007, Joe Horn chased and shot down burglars after they stole property from his home. At the time he was on the 911-dispatch call and was alerted that there were officers en route. Since he was chasing them, there was also no apparent harm. However, a grand jury refused to indict him. It should be noted that throughout the call, Horn continuously said to the dispatcher that he had a right to defend himself and his property, and as he chased the burglars he stated “I’m going to kill them.” The law protected Horn as he chased down the burglars, and gunned them down.  

The “stand your ground” law that Texas modeled its castle doctrine after has long been deemed the vigilante justice doctrine that hands people a gun and a license to kill. By having no duty to retreat, even outside the home, states are empowering the attacked to become the attacker. This concept of allowing pursuance even when the danger has ceased brings us to present day Ferguson, Missouri. Legal experts in the media frenzy surrounding the Mike Brown killing have reported that self defense includes consistent pursuance until deadly force is used. In Tennessee v. Gardner, the Supreme Court ruled on this issue in relation to law enforcement. The Fleeing Felon Rule allows law enforcement to use deadly force to retrieve a felon. This justifiable homicide, which can be conducted while the felons are subdued, seems to deter the entire goal of the doctrine itself. By not requiring some level of retreat or at least avoidance, this doctrine can easily lead to a game of hunter and hunted. It completely contradicts the “reasonable” force expectations.

The modifications to justifiable homicide defenses for both citizens and law enforcement continue to be a rising issue. The attacked are given a license to kill and not a permit to protect. When states permit deadly force to the extent that one can hunt down their initial attacker, burglar, etc., it sends a very inconsistent message to communities. That message conflicts with the initial message of protecting your home, protecting your person, and protecting your community, because it contains no responsibility to retreat or use a lesser force.  That same message is being echoed through the application of the fleeing felon doctrine. Even though there must be a reasonable belief that serious injury or death from the hands of the felon may occur, there is still no requirement for an officer to first attempt a lesser level of force for apprehension before deadly force is used. Instead of taking measures to stop the criminal, they are permitted to kill. These steps taken by states are sending a message that it is okay to kill when you have to, but it is also sending a message that says you can kill if you want to. There is no duty to retreat, no duty to use a lower level of force, and therefore no duty to be held accountable.

Amber Cleaver
Staffer, Criminal Law Practitioner 

Photo by Mike Licht, via Flickr

Tuesday, September 16, 2014

Going Apple Picking: The Rise of Cell Phone Thefts in Major Cities, and the Industry Fueling It

People tell me I don’t have the world’s greatest survival instincts.  I can’t really say that they’re wrong.  I spent most of my life growing up in rural New York, about thirty minutes outside of Buffalo.  Our local paper put out alarming headlines about town youths kicking the railings out of the park gazebo, and when I was in middle and high school, I remember not one – but three annual school-wide assemblies castigating us for the cardinal scourges of pencil-based bathroom graffiti and “freak dancing[1].”

Anyways, transport this same kid to inner-city Baltimore a few years later and the story pretty much writes itself.  But my editor tells me that I have a word minimum for each of these posts so I’m going to write it anyway.  I decided to go out one night in Federal Hill, which is what realtors call an “entertainment district,” after a particularly harrowing week at the Baltimore City State’s Attorney’s Office.  I figured my apartment, just under a mile away, outside of Johns Hopkins Hospital, wouldn’t be too difficult a walk.  Like I said, my life experiences from living in Clarence, New York and Albemarle Street haven’t exactly turned me into a street samurai[2].

Making my way through the streets of Baltimore, I’m approached by a local with a rather surly disposition.  He asked to see my phone, and I complied.  As much as I love statistics, I’d rather not become one.  I handed over my Windows Phone, and he turned it on.  He then asked, somewhat impolitely, what it was.  After he found out that my phone, a Nokia model that was state-of-the-art at the time that Jersey Shore was considered a novel form of entertainment, he tossed it back and suggested that I do something rather anatomically impossible with myself.  Subsequent letters to Microsoft suggesting an ad campaign “Windows Phones: Not Worth Stealing,” have gone unanswered.

I was not alone in being accosted for my phone.  This year cell phones theft accounts for one in three street robberies.  In San Francisco, it makes up four in every ten street robberies.  In New York City, cell phone thefts make up fully half of all street robberies.  Today, cell phone theft now accounts for fourteen percent of all major crimes committed in New York City.  NYPD Commissioner Ray Kelly places the blame for New York’s spike in crime specifically on theft of Apple products.

In response to this growing trend, police officers have increased the size of their organized crime departments in an effort to combat the small-time neighborhood crews pulling these thefts.  CTIA – The Wireless Association has teamed up with the FCC to create an expansive database of cell phones to allow for better tracking of the devices, and allow the user to remotely “kill” the phone following its theft.  An alternative use of the system, allowing Bruce Wayne and Morgan Freeman to use phones to create electronic maps of every city with cell phones is – at this point – purely speculative.

Apps like “Find my iPhone,” and “Activation Lock,” a personal kill switch, have surged in popularity.  However, these apps do little to actually address the issue, specifically because these phones can be sold back for profit, regardless of condition.  Easy money is to be made, not in using stolen phones, but in selling them.  Companies like Gazelle.com advertise on daytime TV, and offer quick cash for cell phones in any condition.  Kill switches are a pretty substandard deterrent when a company is willing to offer up to a hundred dollars in easy cash for a phone that doesn’t even turn on.

Too lazy or not tech-savvy enough to deal with an online fence?  No problem, just take your ill-gotten cell phone to the nearest mall, and stick it into devices that are innocuously called “EcoATMs.”  These are kiosks throughout the country, resembling ATMs that a person can simply put a cell phone in, regardless of condition or charging state, and receive an immediate payout.  For a top-of-the-line phone, EcoATM’s are able to pay out hundreds of dollars.

Now, EcoATM’s parent corporation, Outerwall, pays lip service on their website towards cooperation with law enforcement.  They tout their “extensive security processes,” in place to prevent the sale of stolen phones.  These “extensive processes” amount to asking the seller to scan their driver’s licenses, and taking a picture of the seller.  An investigation by Baltimore journalists have shown that the machines are unable to identify between a white woman and an Indian woman ten years younger than her.  I have a hard time calling something an “extensive security process” when it can’t even draw the same distinctions that my ninety year-old, legally blind great aunt is capable of.

Philadelphia was the first city to ban EcoATMs, with Baltimore and DC quickly following suit.  There is a huge market to be made abroad for secondhand phones, and companies like Outerwall are making money hand over fist... and that metaphor kind of seems rather pointed when there’s people getting their heads split open for Outerwall’s profits.  

The most odious element of this problem isn’t born from Outerwall or Gazelle though.  George Gascón is the San Francisco District Attorney, and worked with California and New York Lawmakers to adopt plans to better proliferate kill switch technology.  According to Gascón, the stiffest opposition to this development, however, has come from cell carriers themselves. And why wouldn’t it?  Even though the Outerwall makes money on every cell phone sale – stolen or otherwise – AT&T, Sprint, and Verizon have brought in almost four billion dollars in revenue from selling cell phone insurance. 

Law enforcement officers and prosecutors are facing an even bigger hurdle in breaking up cell phone theft rings. Consumer databases, have proven largely ineffective in fixing the issue and many of the phones make their way overseas, where recovery for evidence purposes is virtually impossible.  Ultimately, the real kill switch that needs to be thrown is the one attached to the gross profiteering from theft that marks this industry.

Travis Nemmer
Staffer, Criminal Law Practitioner

[1] For the record, I still do not know what this is, and I am fairly certain that I did not partake in it. Your humble author was apparently not particularly popular in High School. Editor’s Note – Or in Law School.
[2] My predilections towards referencing 1980’s Pen-and-Paper roleplaying games probably explains a lot about the above footnote. Editor’s Note – “Probably?”