News and Insights

United States Supreme Court Holds that Attachment of GPS Tracking Device is a Search Under the 4th Amendment

Much like the landmark (and terribly confusing) opinion in Crawford v. Washington several years ago, the Supreme Court once again issued an opinion that appears likely to raise more questions going forward than answers.  The issue presented in United States v. Jones was whether the attachment of a Global Positioning-System GPS tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the FourthAmendment.  The Court held:

The Government’s attachment of the GPS tracking device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Pp. 3–12.

     (a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted. Pp. 3–4.

     (b) This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position. Pp. 4–12.

     (c) The Government’s alternative argument—that if the attachment and use of the device was a search, it was a reasonable one—is forfeited because it was not raised below. P. 12. 615 F. 3d 544, affirmed.

See the full opinion in United States v. Jones.  Okay, so it's a search (and in this case, an unlawful one), but where are the limits?  What instructions should be given to police officers and investigators?  Here's what Lyle Denniston over at ScotusBlog had to say:

Amid a disagreement about what a privacy invasion meant in 1791, but with a strong embrace of privacy in the electronic age, the Supreme Court on Monday suggested that police probably should get a warrant before they physically attach an electronic monitor — like a GPS tracking device — to a car or truck, while leaving some doubt about how long such a device may be used, and about what kinds of suspected crimes allow its use. In effect, the Court seemed to have launched years of new lawsuits to sort it all out. The choice Monday was between a minimalist approach, one in the middle, and an expansive view of Fourth Amendment privacy. Each had support among the Justices, but counting the votes was a bit tricky.

Justice Scalia delivered the opinion of the court.  He was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayer.  Justice Sotomayor, however, penned her own concurring opinion, as did Justice Alito (joined by Justices Ginsburg, Breyer, and Kagan).

To be honest, I haven't had the time yet to fully digest the opinion, so I'll save any more comments for another time.  However, I will say that I am initially disappointed by the name of the case.  Fourth Amendment cases are supposed to have cool and interesting names (e.g. Katz, Ciraolo, Kyllo), not Jones.  C'Mon.  When you cite U.S. v. Jones, people are going to thing you're making the case up.  Oh well.  At a very minimum, this case should give all the hardworking criminal defense lawyers ample ammunition for motions to suppress.

Does the 4th Amendment apply to a Cell Phone Search?

Boy, do we love our cellphones.  They are our phone books, our computers, our gaming systems, our cameras, our music players, you name it.  When a person's cell phone is such a multifaceted device, how can that affect their legal rights under a search warrant?  Read the summary of the case below to find out more about how the 4th Amendment applies to a cell phone search.

United States v. Aguirre, U.S. Court of Appeals for the Fifth Circuit (Federal), December 13, 2011

In this case, Appellant was convicted of using a communications facility to facilitate a drug trafficking crime in violation of 21 U.S.C. § 843(b).  On appeal, she challenges the district court’s denial of her motion to suppress evidence, claiming that the search and seizure of her cell phone was tainted by law enforcement officers’ illegal entry into a home where she was a guest.  The 5th Circuit found her arguments unpersuasive and affirmed the judgment.

Federal agents arrested a drug suspect shortly after he drove away from his home and they recovered marijuana and cocaine from his car.  The agents went back to the suspect’s home to conduct a knock and talk interview with the remaining occupants.  After knocking on the door and announcing themselves, the agents received no verbal response but did see a person look through the window, then quickly retreat toward the back of the home.  Fearing the destruction of drug evidence, the officers immediately entered the home without a warrant or consent.  Once inside the home the agents saw marijuana and drug paraphernalia in plain sight.  The agents secured the home and the occupants while they applied for a search warrant.  After obtaining the search warrant, the agents searched Appellant’s cell phone that was lying in plain view on a bed, and discovered several incriminating text messages.

The court held that the agents’ warrantless entry into the home was lawful.  First, they had probable cause to believe it contained evidence of illegal drugs and drug dealing.  Agents had just arrested the first drug suspect, after watching him leave the home, and had recovered marijuana and cocaine from his car.  Second, after knocking and announcing their presence, the reaction of the remaining occupants reasonably caused the agents to believe that evidence was being destroyed.  The agents’ entry into the home was justified by the exigent circumstance of destruction of evidence and supported by probable cause.

Appellant argued that the search and seizure of her cell phone was improper because the warrant did not particularly describe it as one of the items to be seized.  The court noted that while the Fourth Amendment requires that a warrant particularly describe the place to be searched and the person or thing to be seized, each item does not need to be precisely described in the warrant.  The particularity requirement can be satisfied where a seized item is not specifically named in the warrant, but the functional equivalent of other items are adequately described.  Here, the agents were authorized to search for items used to facilitate drug trafficking to include records, correspondence, address books and telephone directories.  While this list did not include cell phones, the court held that cellular text messages, the directory and call logs of Appellant’s cell phone could be characterized as the functional equivalent of several items included in the search warrant such as: correspondence, address books and telephone directories.  Appellant’s cell phone served as the equivalent of records and documentation of sales or other drug activities and as such, the agents lawfully searched it under the authority of the search warrant.

I suppose this ruling was just a matter of time in our iPhone culture.

The Right to Confrontation and the Outcry Witness

Sanchez v. State – Recently released and designated for publication, the Texas Court of Criminal Appeals considered the admissibility of outcry statements by alleged child sexual assault victims.

In this case, appellant was charged with sexually abusing his step-daughter. The step-daughter had made an outcry statement to a witness who ultimately became unavailable. The outcry witness was available at a pretrial hearing and testified as to the extent of the outcry and as to the statement made to her. At trial, after the State discovered that the outcry witness was unavailable to testify, the prosecutors moved the court to read the testimony that was taken during the pre-trial hearing to the jury. Over defense objections, the trial court allowed the testimony to be read to the jury. Appellant was convicted on multiple counts of sexual assault, and received concurrent sentences of 28, 15, 7, 5, and 5 years for his convictions.

The defense’s primary objection at trial was that by allowing the prior testimony to be read to the jury, the court violated Sanchez’s Sixth Amendment right to confrontation.

Article 38.072 of the Code of Criminal Procedure allows a victim’s out-of-court statement made to an outcry witness to be read into evidence so long as that statement is a description of the offense and is offered into evidence by the first adult the complainant told of the offense. The problem with the case against appellant was that, while the hearsay of the victim’s statement to the outcry witness would have been admissible under 38.072 of the Texas Code of Criminal Procedure, reading the testimony of the unavailable outcry witness to the jury at trial was hearsay within hearsay. The Court noted that “in order to introduce testimonial hearsay over a Sixth Amendment objection, the State must show that the declarant who made the out-of-court statement is unavailable, and that the defendant had a prior opportunity to cross-examine that declarant.”

The Court boiled the case down even further by concluding that the ultimate issue in this case was whether appellant had an adequate opportunity to cross-examine the outcry witness at the Article 38.072 hearing. The Court stated that the only relevant question at an Article 38.072 hearing is whether, based on time, content, and circumstances of the outcry, the outcry is reliable. Because an Article 38.072 hearing does not provide an adequate opportunity to cross-examine an outcry witness’s credibility, the Court held that admitting the testimony from the pre-trial hearing to be read to the jury violated appellant’s Sixth Amendment right to confrontation. The court reversed the case and remanded it to the Court of Appeals for an analysis of harm caused by the unconstitutional admission of the outcry witnesses’ pre-trial testimony.

With this holding, the CCA sent a message to the State that it won’t be allowed to “backdoor” hearsay if the outcry witness becomes unavailable at trial.

Out near El Paso, the law enforcement folks are pretty anal about boundaries.  Apparently, their “border-protection” mentality applies equally to law enforcement officers from neighboring jurisdictions.  Below is a summary from a federal quarrel between officers of El Paso and Hudspeth Counties.  While it isn't directly on point for this blog, it is tangentially related to Texas criminal law and it has a little bit of 4th amendment seizure flavor to it.

Short v. West, Fifth Circuit Court of Appeals - November 2, 2011

Appellant was an officer in the El Paso Police Department, (EPPD) assigned to a narcotics task force for the 34th Judicial District. The 34th Judicial District includes both El Paso and Hudspeth counties. While conducting a task force related traffic stop in Hudspeth County, appellant encountered a Hudspeth County Sheriff Department (HCSD) deputy who asked him what he was doing there.  Appellant identified himself to the satisfaction of the deputy and told her that EPPD task force officers were working in Hudspeth County.  The deputy contacted her dispatcher who in turn called Hudspeth County Sheriff West and told him that EPPD officers were performing traffic stops in Hudspeth County.  Sheriff West ordered his deputies and find out whether the EPPD officers were, in fact, law enforcement officers.  Sheriff West also ordered his deputies to round up the EPPD task force officers and escort them to his office.

A lieutenant in the HCSD located appellant’s supervisor, who produced identification showing him to be an officer with the EPPD and the task force.  Appellant’s supervisor ordered him and the other task force members to return to El Paso County.  While on the way back to El Paso County, appellant and several task force members were stopped and surrounded by HCSD deputies.  The HCSD deputies ordered appellant and the other task force members to go to a nearby HCSD substation.  They were told that they would be arrested if they failed to comply.  Appellant and the task force members went to the HCSD substation where Sheriff West complained that he had not been notified of the task activities in his county. He then told the task force officers that they were free to leave.  Appellant sued Sheriff West under 42 U.S.C. § 1983 for violating his rights under the Fourth Amendment.

The court held that Sheriff West was not entitled to qualified immunity.  First, the court found that appellant was seized for Fourth Amendment purposes. The HCSD deputies surrounded the task force officers’ vehicles preventing them from returning to El Paso County.  In addition, appellant was threatened with arrest if he did not accompany the deputies to the HCSD substation.  A reasonable person would not feel free to ignore such a show of force and go about his business.

Second, the court found that such a seizure was objectively unreasonable.  Sheriff West ordered the task force officers to be detained and brought to the HCSD substation so he could personally examine them. This was not likely to quickly confirm or dispel his suspicions as to whether or not the task force officers were legitimate law enforcement officers.  There were less intrusive ways to accomplish this.  Sheriff West could have contacted the EPPD Chief, whom he knew or he could have run the license plates on the task force officers’ vehicles. It was unreasonable to not recognize or pursue these options as alternatives to seizing Short.

Section 32.31(b)(1) of the Texas Penal code provides that a person commits the offense of Credit Card Abuse or Debit Card Abuse if that person “presents or uses” a credit/debit card that was not issued to him and is not used with the owner’s consent.  But what does it mean to “present” or “use” a credit/debit card? Can someone “present” a credit/debit card without “using” it?

The Texas Court of Criminal Appeals considered this issue recently in the case of Clinton v. State.  In this case, the appellant had been convicted of the state-jail felony of debit card abuse after she used a stolen debit card to attempt to purchase cigarettes at Wal-Mart.  Notwithstanding the fact that the store declined the card and appellant never completed the transaction, the jury convicted her of “using” the stolen debit card under Section 32.31 (the State did not charge her with “presenting” the card).

On appeal, the 6th District Court of Appeals (Texarkana) reversed the conviction and reformed the judgment to reflect a conviction for the lesser-included offense of attempted debit card abuse.  The COA reasoned that appellant did not “use” the debit card, but rather “presented” it.  Because the transaction was not ultimately consummated and she did not obtain a benefit, the COA held that the evidence was insufficient sustain her conviction for "use."

The Texas Court of Criminal Appeals took the case on the State’s petition for discretionary review.  The State argued that the COA erred by requiring that “use” of a debit card include proof of consummation of the transaction.  The CCA held:

Based on the ordinary meaning of the words as used in the statute, we conclude that the statutory terms “use” and “present” may overlap in meaning, that a transaction need not be consummated to support a jury finding that a defendant used a debit card, and that the court of appeals erred by determining that the evidence is insufficient to establish debit card abuse.

The CCA concluded that appellant “used” the debit card when she swiped it through the card reader for the purpose of purchasing cigarettes.  Accordingly, the CCA reversed the COA and reinstated the judgment of the trial court.

Judge Price concurred in the opinion, but wrote separately to opine that presentment is subsumed by use and should not be given independent legal significance apart from use.