Tagged: warrantless search

The Black Box: Rapid Technological Change Post-Riley

POST WRITTEN BY: Steven Lapkoff (’16), J.D. Pace Law School

The fallout from the U.S. Supreme Court’s decision in Riley v. California, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014), has already changed police practices regarding the search and seizure of a cell phone that is held incident to an arrest. Before Riley, a police officer could search the cell phone of an arrestee for incriminating information or to expose the identities of accomplices. The Riley decision held that “[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’” The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Riley, 134 S. Ct. at 2495. In so doing, the court made clear that the vast quantities of personal information could only be searched when accompanied by a proper warrant.

However, recent advances in encryption technology are out-pacing the ability of courts and legislatures to adapt, increasingly putting the contents of smartphones outside the reach of the police and courts even when searches are authorized by warrant. The stated aim of this new technology is to “lock out the government,” regardless of the Riley decision.

Apple, maker of the iPhone, which uses the iOS software platform, has upgraded its encryption standard to the point that it claims is “unbreakable,” and the company does not have the ability to unlock a user’s phone even when requested to do so by government entities. Google, which distributes the competing Android platform to smartphone manufacturers, has also decided to encrypt its phones by default.

This has lead to a situation that the FBI has termed “The Black Box” or “Going Dark.” The argument goes, that if a smartphone cannot be accessed even under a lawful court order, then kidnapped children will go un-rescued and drug kingpins will go un-caught. Criminals’ secrets can then be stored worry-free, in these “black boxes” far from the reach of the police and courts. The FBI has gone so far as to demand that the tech companies implant “back door” access for police and courts to ensure continued access to users’ data.

The tech companies have responded that such scare scenarios are “inflammatory and inaccurate,” and that any “back doors” provided to the government would inevitably be exploited by opportunistic hackers. They point out that the “metadata,” data about who a person calls and texts from a smartphone, is accessible elsewhere, and that society’s expectations of privacy have fundamentally changed as more and more people shift a greater portion of their private lives onto their smartphones.

The editorial commentary in the media has come down strongly on the side of the technology companies. Wired further notes that “none of the criminal cases cited by [FBI Director] Comey meet that hypothetical because in real life those instances would be extremely rare and far outweighed by the clear public benefit of preventing the very real threat of a large-scale data breach that could affect millions of Americans.”

In the ongoing debate between security and privacy, the inexorable forward march of technology may leave the courts behind.

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Professors, Prosecutor, and Police Chief Address Cell Phone Searches after Riley

POST WRITTEN BY: Rebecca Arbolino (’16), Pace law School

On October 7, 2014, Pace Law School CLE and the Pace Law School Criminal Justice Institute co-hosted “Cell Phone Searches after Riley: Investigative and Evidentiary Issues.” The CLE commenced in the Gerber Glass Law Library Moot Court Room. Streaming video of the event was available online from Pace Law School.

Pace Law Professors Bennett Gershman, David Dorfman, and David Bender, along with two distinguished Pace Alumni, discussed the implications of the recent Supreme Court decision in Riley v. California.  Professor Bender is not only a professor at Pace Law but also a sole practitioner with extensive experience in technology and privacy litigation. Thomas Kapp, an Assistant District Attorney for Bronx County, and Chris McNerney, Esq., the Chief of Police for the Town of Greenburgh, added insight and practical depth to the scholarly panel. The moderator, Pace Law School 3L Annmarie Stephanic, began the event with a recorded webinar conversation between Prof. Gershman, a former defense litigator and prosecutor and A.D.A. Thomas Kapp. After the webinar, the panelists discussed Fourth Amendment issues after Riley. Finally, the panelists answered questions from attendees.

Webinar

The webinar elucidated the main issues presented by Riley. Professor Gershman remarked upon Riley as a “landmark case.”  Riley is the first Supreme Court decision about police intrusion upon technological privacy, and Gershman found that the decision’s unanimity was “startling.”

A.D.A. Kapp explained that the practical implications for policing are minor: most prosecutors find it prudent not to use evidence acquired through warrantless cell phone searches. Rules for New York State and other states for searches incident to valid arrests required warrants to search cell phones before Riley in the absence of exigent circumstances or consent. According to Kapp, since the scope of Riley’s holding is limited to cell phones, warrantless searches of digital devices such as flash drives and digital cameras are still permissible.

Gershman agreed with the limited scope of Riley, but applied the reasoning therein to other devices like laptops: if an item’s immense storage capacity heightens the privacy intrusion of searching that item, then searches of digital devices similar to cell phones involve a heightened individual privacy interest. Under the Fourth Amendment reasonableness balancing test for warrantless searches, the question is whether any legitimate government interest outweighs the intrusion upon individual privacy interest. If the heightened privacy interest in cell phones expressed in Riley applies to similar devices like laptops, then the scales may tip toward requiring warrants to search those similar devices.

Kapp called Riley “a seminal case for the digital world” because the Supreme Court finally recognized the individual “right to digital privacy.”

Panel Discussion

Following the showing of the webinar, the panel discussion began with Prof. Bender explaining the rapid changes in privacy law. Privacy law changes in response to developments in technology such are drones and data mining.

Prof. Dorfman ignited the conversation with a criminal defense perspective: although police can often obtain a search warrant quickly, problems specific to searches of cell phones arise in applying for and issuing warrants. For example, if an officer arrests someone for selling drugs and he discovers a cell phone on the arrestee’s person, then is there a sufficient nexus between the drug selling and cell phone to establish probable cause for searching the cell phone? Prof. Dorfman further remarked upon Riley’s impacts for particularity in warrants to search cell phones: if cell phones contain immense amounts of data and are subject to heightened privacy interests, then do warrants to search cell phones require more particularity than they did before Riley?

Police Chief McNerney explained that officers in New York State almost always apply for a search warrant to search a cell phone. In applying for a search warrant, the officer asks for permission to search all possible areas in which he may obtain evidence of the crime, and the judge limits the officer’s requests. Satisfying the particularity requirement is thus the province of judges.

A.D.A. Kapp predicted that search warrants for both cell phones and other digital devices like computers will soon be subject to heightened particularity requirements. Although the particularity requirement presents specific problem in the context of digital searches, judges may decide to limit the scope of digital searches by issuing particularized warrants thereof.

Prof. Gershman mentioned the doctrine of minimization. Minimization requires particularity in order to avoid the search of information that is either privileged or unrelated to the crime.

Despite the Circuit Split about the particularity requirement for digital search warrants, Prof. Bender suggested the following procedure as a way to satisfy the doctrine of minimization. Officers create a bitstream copy, or mirror image, of the data to be searched. After a neutral third party conducts the search of the bitstream copy, the third party then provides officers with only information that is both non-privileged and relevant to the offense.

Prof. Dorfman further elaborated upon the framers’ concerns about “general searches.”  The doctrine of minimization and the particularity requirement are designed to prevent such searches. The Riley court explained that a search of a person’s cell phone is more intrusive than a search of his house is. The problem with particularity in searches of cell phones arises because of the plain view doctrine. For example, if officers are conducting a valid search for contraband ‘X’, then officers can seize contraband ‘Y’ so long as contraband ‘Y’ is in plain view during the search for contraband ‘X’. Evidence in plain view of crimes irrelevant to the authorized search is especially problematic in searches of cell phones with immense storage capacities.

According to Chief McNerney, the constitutionality of cell phone searches ultimately “boils down to reasonableness.” Prof. Dorfman explained, however, that “reasonableness” is not all-or-nothing: an individual who uses technology does not necessarily relinquish his right to privacy.

Prof. Gershman and the panelists ended the discussion with the framers’ intent: the framers themselves could not have imagined a device like a cell phone. Surprisingly, though, the Supreme Court originalists agreed that cell phones deserve heightened privacy protection. The Supreme Court pushes principles until they become illogical. In United States v. Robinson, 414 U.S. 218 (1973), the assumption that defendant had no expectation of privacy in his cigarette pack rang true. In Riley, however, the assumption that defendants had no expectation of privacy in their cell phones became illogical.

Q &A Session

An astute attendee asked about the significance of Riley’s warrant requirement, given the various exceptions thereto. Namely, if warrantless searches are permissible when no exigent circumstance exists, the owner consents to the search, or the officer conducts an inventory search, then does the warrant requirement change anything?

Although the panel understood exigent circumstances as a valid exception to the warrant requirement for nearly any search, panelists opined about consent and inventory searches. Chief McNerney explained that consent can be problematic.  The NYPD, for example, required specific, written consent forms instead of verbal consent.

A.D.A. Kapp wondered if the exception for inventory searches applies to cell phones: if cell phones are containers, then inventory searches thereof ensure that the owner cannot later claim that data is missing. Riley does not address whether a warrantless inventory search to catalog cell phone data is reasonable under the Fourth Amendment. Prof. Dorfman responded that an inventory search cannot be a ruse for an investigative search: the police have the burden to create a non-investigatory procedure for inventory searches.

Prof. Dorfman also inquired about whether warrantless searches of other digital devices stored in a vehicle fall under the automobile exception to the warrant requirement. Riley requires a warrant for cell phones within a legal automobile stop, even when officers have probable cause to believe that there is contraband inside the automobile. Riley does not, however, address whether searches of similar devices require warrants within the context of the automobile exception.

Another attendee asked about Riley’s rejection of applying the container analogy to cell phones: are there further implications for searches of similar, non-container devices? The panel agreed that Riley’s rejection of the container analogy to cell phones implies changes in the future of digital searches, but expressed that Riley does not illuminate the nature of those changes. Prof. Dorfman explained the impossibility of applying the constitutional text and framers’ intent to searches of intangible things like digital data: such application is like trying to fit “a square peg into a round hole.”  Prof.  Bender said that it may be best for the legislature to answer such questions.

Prof. Gershman concluded the discussion stating that both the judiciary and the legislature are “behind the curve perpetually” in the light of rapidly changing technology.

NY Court of Appeals Addresses the Scope of the Exigent Circumstances Doctrine

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The Fourth Amendment’s protection against “unreasonable searches and seizures” requires the police to obtain a warrant prior to searching someone’s person, house, papers, or effects for evidence of a crime, subject to certain exceptions that courts have acknowledged. A major exception is that warrantless searches and seizures are constitutionally permissible when required by “exigent circumstances.” While this exception is well recognized, courts are frequently confronted with cases in which the scope of this exception is an issue.

In 2012, New York’s Second Department Appellate Division was confronted with an appeal in People v. Jenkins in which New York City police officers, while on patrol, heard gunshots coming from the rooftop of an apartment building. Upon entering the building, the officers observed a man holding a firearm who then fled into one of the apartments in the building, along with another man. When no occupant of the apartment responded to the officers’ request to open the apartment’s locked door, the officers entered after breaking down the door with a sledgehammer.

The officers’ forcible and warrantless entry into the apartment and seizure of the two men was, given the circumstances observed by the officers, justified under the exigent circumstances exception. At issue in the case was further action by the officers in seizing and searching a silver box in which they found the gun that had been fired, which they had not otherwise been able to find on either of the men or in plain view.

The Second Department, reversing the lower court’s suppression decision, held that the exigent circumstances that justified the officers’ entry into the apartment and seizure of the suspects extended as well to justify the search of the silver box.

In a unanimous opinion issued on October 16, 2014, the New York Court of Appeals reversed. The Court of Appeals noted that by the time the officers seized and searched the silver box, they had already handcuffed the men, so there was no danger that the defendant would destroy or dispose of the gun. Nor was there any urgency for further searches to protect the officers or any of the other occupants of the apartment against harm. Therefore, any search of the silver box would have required a warrant.

Source:

  • People v. Jenkins, 100 A.D.3d, 954 N.Y.S.2d 183 (App. Div. 2d Dep’t 2012), rev’d, 2014 Slip. Op. No. 148 (N.Y. Oct. 16, 2014).

Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container? by Thomas Kapp

The Pace Criminal Justice Center is honored to feature an article by Thomas Kapp,  Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container?  Thomas Kapp is the Senior Investigative Attorney at the Bronx County District Attorney’s Office and a member of the Pace Criminal Justice Center Advisory Board. In his article, he

review[s] the current federal standard for a search incident to arrest of containers and how some federal and other state courts have addressed the search of a cell phone.  In addition, [he] discusses the development of the law in New York of the right of police to conduct a search incident to arrest of a closed container and will also address whether that right includes the search of a cell phone incident to arrest, an issue which may be ripe for our courts.

As the article notes, this issue will be decided this term by the United States Supreme Court.  Mr. Kapp concludes his analysis by assessing the future of searches of cell phones incident to arrest in the State of New York.

Enjoy reading the full article: Thomas Kapp – Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container?

Supreme Court “Consents” To Expanding Warrantless Search Exception

For the past forty years, the United States Supreme Court has continually tinkered with the exceptions to the Fourth Amendment’s general prohibition on warrantless searches, including the allowance of warrantless searches that are conducted after the police have obtained voluntary consent from the individual whose property is being searched. In 1974, the United States Supreme Court ruled that the Fourth Amendment recognizes a warrantless search of a premises when the police obtain the consent of an occupant who shares common authority over the property. United States v. Matlock, 415 U.S. 164, 170 (1974). Thereafter, the Court expanded its decision in Matlock to include situations where a warrantless search of a premises was conducted based upon the “consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not.”  Illinois v. Rodriguez, 497 U.S. 177, 186 (1990).  In 2006, the Court again modified its prior decisions on this issue, ruling that the consent of one co-occupant was insufficient to authorize police to conduct a warrantless search of a premises if another objecting occupant was “physically present” at the time. Georgia v. Randolph, 547 U.S. 103 (2006).

On Tuesday, the Court decided to rework its decision in Randolph, and severely limit its future application. In Fernandez v. California, the Court held that the rule set forth in Randolf was “extremely narrow,” and does not apply to situations when the police have received consent from one co-occupant after the objecting occupant had been removed from the premises. The Court explained that the co-occupant’s initial objection to the police’s entry is not everlasting, and can be overridden by the consent of a co-occupant after the objecting party is no longer present. Notably, the Court held that the consent of a co-occupant will authorize a search even when the objecting party has been removed from the premises involuntarily, including when removal occurs as a result of police conduct. The Court explained that searches occurring after the police have removed the objector will be permissible so long as the reason for removing the occupant was “objectively reasonable.” In Fernandez, the police had removed the objecting co-occupant after he was suspected of being involved in a robbery and believed to have battered his girlfriend moments before the police had arrived. Several hours later, the police returned to the residence and conducted a warrantless search of the premises based upon the girlfriend’s consent.

Three members of the Court (Justices Ginsburg, Sotomayor, & Kagan) disagreed with the majority’s decision, noting that “[i]n its zeal to diminish Randolph, today’s decision overlooks the warrant requirement’s venerable role as the “bulwark of Fourth Amendment protection.” They explained that “[r]educing Randolph to a “narrow exception,” the Court declares the main rule to be that “consent by one resident of jointly occupied premises is generally sufficient to justify a warrantless search. Such a declaration “has it backwards, for consent searches themselves are a “`jealously and carefully drawn’ exception” to “the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s house as unreasonable per se.” (citations omitted).

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