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The Fourth Amendment has received significant attention in recent court rulings involving surveillance, electronic data retrieval, and other types of technology. Two rulings issued on October 21, 2019 demonstrate how difficult it can be to anticipate the outcome of Fourth Amendment disputes relating to technology. In one, the Georgia Supreme Court found the warrantless search of electronic data from a car following a fatal accident to be unconstitutional. In the second, the U.S. Court for the Western District of Tennessee held that the Fourth Amendment permitted the warrantless placement of a government surveillance camera on a man’s private hunting and fishing property.

Mobley v. State (Ga. Oct. 21, 2019)

In Mobley, the Georgia Supreme Court ruled that a trial court erred in denying a motion to suppress evidence that law enforcement retrieved from the electronic data recorder in the defendant’s car. In coming to this conclusion, the Mobley court ruled that – regardless of any reasonable expectation of privacy – the physical entry of a police officer into the defendant’s car to retrieve the electronic data was a search for Fourth Amendment purposes.

The Mobley case arose after a car driven by defendant Mobley collided with a car that pulled out of a private driveway; both occupants of the latter car died. Before the cars were removed from the accident scene, a police investigator entered both cars, and attached a crash data retrieval device to data ports in the cars to download available data. The data revealed that shortly before the collision, Mobley’s car was traveling almost 100 miles per hour. The next day, law enforcement applied for a warrant to seize the electronic data recorders. The warrant was issued, but no additional data was retrieved from the recorders. A grand jury indicted Mobley on a number of counts, including vehicular homicide.…

Continue Reading Courts continue to consider intersection of Fourth Amendment and technology: without a warrant, retrieval of car’s electronic data unconstitutional, but surveillance on hunting property permissible

The Supreme Judicial Court of Massachusetts issued two rulings last week addressing law enforcement access to and use of cell phone location data. In the first, the court found that pinging a cell phone’s real-time location constitutes a search in the constitutional sense. In the second, the court held that warrantless location tracking was an unlawful search and that information obtained as a result of that tracking was “fruit of the poisonous tree” that the defendant could suppress. The rulings acknowledge the challenges inherent in adapting age-old legal concepts to new technology, but also show that some invasions of privacy may be permissible depending upon the circumstances. While the court’s decisions addressed Article 14 of the Massachusetts Declaration of Rights rather than the Fourth Amendment to the U.S. Constitution, the analytical decisions may offer guidance as to how other courts may rule on similar issues in the absence of on-point precedent from the U.S. Supreme Court.

Commonwealth v. Almonor

On April 23, 2019, the court ruled that law enforcement compelling a suspect’s wireless service provider to ping the suspect’s cell phone, revealing its GPS coordinates, was a constitutional search for purposes of Article 14 of the Massachusetts Declaration of Rights, which states, in relevant part, that “[e]very subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions.” However, after deciding that issue of first impression, the court found the warrantless search was adequately supported by probable cause and was thus reasonable under the exigent circumstances exception to the warrant requirement.

In Almonor, the defendant was suspected of murder. After the police learned Almonor’s phone number, they requested real-time location of his cell phone from his wireless service provider. The provider pinged the phone, and police used the resulting GPS coordinates to find the defendant and subsequently seized a sawed-off shotgun and bulletproof vest from his hiding place pursuant to a search warrant. Almonor successfully moved to suppress the evidence as fruit of an unlawful search, and the government appealed.…

Continue Reading Massachusetts High Court issues rulings defining contours of constitutional protection for cell phone location data

As previously reported, the Supreme Court on November 29 heard arguments in Carpenter v. United States, an important privacy case about the Fourth Amendment’s application to 127 days’ worth of a criminal suspect’s cell-site location information. While the Court has yet to decide the case, its decisions last week in Byrd v. United States and earlier this Term in District of Columbia v. Wesby (argued by one of this post’s authors) hint of trouble ahead for the government.

Byrd and Wesby: A practical rather than technical reading of the Fourth Amendment

While the facts were quite different in Byrd and Wesby, the decisions share a common theme. In both, the Supreme Court rejected analytical shortcuts that did not reflect the real world.

Byrd involved a police search of a rental car trunk yielding contraband, including forty-nine bricks of heroin. The lower courts accepted the government’s argument that the driver could not object to the search under the Fourth Amendment because “drivers who are not listed on rental agreements always lack an expectation of privacy in the automobile based on the rental company’s lack of authorization alone.” The Supreme Court decisively rejected this “per se rule.” It noted how there are “countless innocuous reasons why an unauthorized driver might get behind the wheel of a rental car and drive it” and how “car-rental agreements are filled with long lists of restrictions.” A breach of an agreement would not automatically mean the driver lacked even the reasonable expectation of privacy necessary to claim Fourth Amendment protection. (The same might be argued of email providers’ fine-print-laden Terms of Service, as the Electronic Frontier Foundation and Orin Kerr have noted.) But the Court also rejected the competing argument that the sole occupant of a rental car “always” has an expectation of privacy, and so it remanded for a ruling based on the precise facts rather than categorical rules.
Continue Reading Supreme Court drops hints about upcoming privacy decision in Carpenter

On November 29, many interested audience members packed into the Supreme Court to witness oral argument on the issue of whether the Fourth Amendment demands that the government obtain a warrant in order to acquire long-term, cell-site location information (CSLI) from wireless service providers, in what could be one of the most influential privacy decisions of this generation: Carpenter v. United States.

In the wake of a string of armed robberies at electronic retail stores in the Detroit area in 2011, the Federal Bureau of Investigation (FBI) obtained orders pursuant to the Stored Communications Act (SCA) requesting “transactional records” from wireless service providers, including CSLI pertaining to the call origination and termination of the arrested suspects’ phone numbers. Under the SCA, the government may require disclosure of such records upon a finding of “specific and articulable facts” that “there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. 2703(d). Defendant Timothy Carpenter moved to suppress the government’s cell-site evidence before trial, claiming the government obtaining CSLI from his wireless service provider constituted a warrantless search in violation of the Fourth Amendment. The district court denied the motion, the Sixth Circuit affirmed, and the Supreme Court granted certiorari last June.…

Continue Reading Nation on Hold for Supreme Court Carpenter v. United States Decision

Three bipartisan Senate bills are up for consideration in Congress that would attempt to modernize the legal standards under which the U.S. government can access communications electronically stored by email service providers and cloud computing companies.

The proposed bills, introduced July 27, 2017, each provide a different scheme in updating the Electronic Communications Privacy Act (ECPA), which has been criticized for being woefully outdated, given the rise of the Internet of Things and how people currently share, store, and use information. Accordingly, many have publicly called for Congress to completely overhaul the Reagan-era statute.

Current Framework: The ECPA

Although ECPA has undergone amendment since its passage in 1986, the most scrutinized aspects of the law, such as those related to email retention, remain unchanged from when it was passed more than 30 years ago.

ECPA currently requires law enforcement officials to obtain a warrant in order to access data less than 180 days old. A warrant requirement is a strict legal standard, requiring that any request be supported by probable cause – a reasonable suspicion of criminal activity based on articulable facts.

However, if the data is more than 180 days old, ECPA considers those older communications to be abandoned, and therefore not subject to a reasonable expectation of privacy. Thus, law enforcement officials are entitled to access those emails and other electronic communications without a warrant.  Instead, government officials need only issue a subpoena for the information or obtain a court order.
Continue Reading ECPA Reform Legislation on the Horizon (Again)