Supreme Court

U.S. Supreme Court Holds Expectation of Privacy in Cell Phone Geolocation Data

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.


Smartphones have become central to the lives of most Americans. We count on our phones to keep us connected to the world. Because our phones handle so many pivotal functions for us, we’ve become increasingly reliant on them. They’ve have become so much a part of our day-to-day lives that, if you’re anything like me, you feel a bit lost when you realize you’ve misplaced your phone.

Our phones are important to us because of their utility, in part because they instantaneously provide us with incredibly relevant and up-to-date data and information about the world around us. Of course, much of that usefulness is derived from the massive amounts of personal data collected by our phones and the apps running on them. That data serves as the basis for a more personalized and functional experience.

Unfortunately, the very same data the makes our phones so valuable to us can also be used against us, sometimes by criminals, and other times by law enforcement. Last month, the United States Supreme Court considered the latter situation in Carpenter v. U.S., No. 16-402, 585 U.S. ____ (2018).  At issue was whether governmental access to historical geolocation cell phone data in order to ascertain a user’s movements constitutes a search.

Importantly, at the outset, the Court explained that careful vigilance was required when applying Fourth Amendment jurisprudence to the technological advancements that provide law enforcement with increasingly invasive access to personal information: “We have kept…Founding-era understandings in mind when applying the Fourth Amendment to innovations in surveillance tools. As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to ‘assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’”

The Court then turned to an examination of the specific type of information at issue in the case at hand: cell phone geolocation data. The Court noted that it is nearly impossible for users to prevent the collection and storage of their phone’s geolocation data: “Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily “assume the risk” of turning over a comprehensive dossier of his physical movements.”

Next the Court considered whether stored geolocation data was protected by the Fourth Amendment and concluded the it was: “Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through (cell phone location information).”

The Court explained that because there is an expectation of privacy in a phone’s geolocation data stored on third party servers, a warrant is required in order for the government to access it: “The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment…Having found that the acquisition of Carpenter’s CSLI was a search, we also conclude that the Government must generally obtain a warrant supported by probable cause before acquiring such records.”

Of note, the Court clarified that although a warrant is generally required to access stored geolocation data, said requirement was inapplicable in the face of exigent circumstances.

Finally, the Court wisely recognized its duty to “ensure that the ‘progress of science’ does not erode Fourth Amendment protections.” Given the rapid rate of technological advancement that we’ve seen over the past decade and the fact the pace of change will only increase exponentially in the years to come, this acknowledgement was reassuring.

Technology provides incredible benefits, but privacy issues abound. Protections from unfettered governmental access to the increasingly personal data collected by our phones are needed now more than ever. The Court’s holding in this case strikes the right balance and provides much-needed guidance in the midst of a turbulent and increasingly invasive technological landscape.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at [email protected].


Silence is no longer golden


This week's Daily Record column is entitled "Silence is no longer golden."

A pdf of the article can be found  here and my past Daily Record articles can be accessed here.


Silence is no longer golden

Earlier this month, the U.S. Supreme Court handed down its decision in Berghuis v. Thompkins, No. 08-1470.

At issue in Berghuis was whether the defendant, Van Chester Thompkins, a suspect in a shooting, waived his Miranda rights by remaining silent and then, after three hours of interrogation, responded to a question from one of the interrogating officers with a one-word response.

The Court held, in a 5-4 decision written by Justice Kennedy, that by remaining silent the defendant did not invoke his right to remain silent. The Court also concluded that when Thompkins ultimately spoke to police following a three hour period of silence, his actions were knowing and voluntary, thus he waived his right to remain silent. In the dissent, Justice Sotomayor explained the second half of the holding as follows:

The Court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of ‘waiver’ must, counterintuitively, speak — and must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the police.

In other words, the majority deemed that any ambiguity be construed in favor of the police, since interrogating officers are apparently too thick to comprehend silence indicates a desire to be silent. Or, as Justice Kennedy explained in the majority opinion:

If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression "if they guess wrong."

Because, really, the last thing we want police officers to do is to think. And in their defense, one would necessarily require a degree in quantum physics to make the deduction that a prolonged period of silence on behalf of a defendant from the very start of an interrogation indicated a desire to remain silent.

So, it would seem that the motivation behind the decision is to protect the police from their own stupidity. Because otherwise, the dimwitted police might face the oh-so-embarrassing happenstance of suppression of evidence, should they violate an accused’s constitutional right to remain silent.

That’s what bothers me the most about this decision: When it's distilled down to its essence, there is an underlying assumption that police are less savvy and intelligent than the suspects whom they interrogate. That’s certainly not the case when it comes to police procedures. No one knows how to walk that fine line between lawful and unlawful behavior better than the police, especially when it comes to interrogations.

On the other hand, when it comes to Miranda rights,the jurisprudence has become so complicated, that the invocation of those rights requires specific words, which vary depending on the jurisdiction in which you’re arrested. In order to successfully invoke Miranda rights, an accused must either accidentally stumble on the correct choice of words or take a course to learn about the proper way to protect one’s constitutional rights.

Even that’s not as simple as it seems, however. Just a few weeks ago, two Norfolk, Va. high school teachers were placed on administrative leave after a parent complained about their efforts to educate students about the proper invocation of their constitutional rights when stopped by the police.

The lesson to be learned is that, in the wake of Berghuis, U.S. citizens would be wise to take to the Internet and educate themselves regarding the protection of their rights during an encounter with the police. Because, according to the U.S. Supreme Court, if you don’t properly invoke a Constitutional right, you lose it.

A Supremely Surprising Case From the Start


This week's Daily Record column is entitled "Five Things Lawyers Should Know About Social Media."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


If you ask the average citizen whether a junior high school student should be subjected to a strip search by school administrators based on the suspicion that she possessed ibuprofen, I’m fairly confident the vast majority of people would reply
with a resounding “No”.

It is, therefore, surprising that U.S. Supreme Court case, Safford Unified School District v. April Redding, 08-479, ever came to pass.

The underlying facts in Safford are simple: Savana Redding, an eighth grader who was only13-years-old at the time of the incident in question, was strip-searched by school officials based on another student’s allegation that Redding possessed ibuprofen in violation of school policy. As part of the strip search, Redding was
asked to pull her bra and underwear away from her body, exposing her breasts and pelvic areas.

Last week, the court issued its decision in the case, holding that the actions of the school administrators were unconstitutional, but concluding that qualified immunity likely shielded them from personal liability: “In sum, what was missing from the suspected facts … was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable. … We … mean … to make it clear that the T.L.O. concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.”

The holding did not surprise me. But everything else about the case did.

What surprised me the most  is that the school officials thought it was reasonable in the first instance to strip search a 13-year-old child who allegedly possessed a common over-the-counter medication, albeit in an amount typically not available
without a prescription.

Even more surprising is the fact that, when her parents complained and then hired an attorney, the school district and its attorneys apparently felt no need to settle the matter quietly, in light of the ridiculous actions taken by its employees.

All the more surprising is that the case actually was litigated all the way up to the U.S.  Supreme Court.

The most surprising fact of all —even though the Supreme Court issued an 8-1 decision in Redding’s favor — is that the male justices on the court apparently failed to appreciate the level of distress experienced by a female student after she was strip searched by adult school administrators.

As explained by Justice Ginsberg in an unusual post-decision interview with USA Today: “They have never been a 13-year-old girl. … It’s a very sensitive
age for a girl. I don’t think that my colleagues, some of them, quite understood.”

I don’t know about you, but I find that fact to be, well —surprising.

It was an extremely invasive, humiliating search based largely on the allegations of another student whose motivations are unknown.

That many of the male members of our highest court —populated mainly by, not surprisingly, men —could not comprehend the level of distress experienced by a young adolescent after a baseless strip search is surprising at best, and perplexing at worst.

A Confounding Victory


This week's Daily Record column is entitled "A Confounding Victory."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


A Confounding Victory

A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment —the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.

—ARIZONA V. GANT, NO. 07-542

Last week, on April 21, the U.S. Supreme Court decided Arizona v. Gant, a decision being touted as a constitutional victory by privacy rights advocates.

The court held that arresting officers may search a vehicle incident to arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search, or if the officers have a reasonable belief that the vehicle contains evidence of the crime for which the person is being arrested.

The decision is both fascinating and a profound example of why Fourth Amendment jurisprudence is worth little more than the paper on which it’s written.

What is most fascinating about the decision is the unlikely judicial alliances found in the 5-4 decision. The majority opinion was authored by Justice Stevens, who was joined by the rather motley crew of Justices Scalia, Thomas, Souter and Ginsberg. Chief Justice Roberts and Justices Kennedy, Alito and Breyer dissented.

That Justice Scalia joined the majority in limiting the scope of a search incident to arrest is, in and of itself, unusual. For so-called “liberal” Fourth Amendment champions such as myself, however, Justice Scalia’s concurring opinion is all the
more surreal.

First, Justice Scalia indicated that he would go further than the majority and hold that a search of a vehicle incident to arrest is reasonable only when the police have probable cause to believe the vehicle contains evidence of a crime. Justice Scalia
explained that officer safety procedures dictate that the arrestee should be removed from the car prior to the arrest, therefore the arrestee should virtually never be within reaching distance of the passenger compartment, rendering that exception unnecessary.

Even more confounding is that, when discounting that exception, Justice Scalia acknowledged that police actions do not occur in a vacuum. He explained that the exception allowing officers to search for weapons within reach of the passenger compartment “leaves much room for manipulation, inviting officers to leave the scene unsecured (at least where dangerous suspects are not involved) in order to conduct a vehicle search.”

And, with that simple statement, Justice Scalia broke the golden rule of Fourth Amendment jurisprudence, forever changing the course of Constitutional Law classes across this great land. Hypothetical factual scenarios will necessarily have to be rooted in reality from now on.

No longer will robot-like police officers, devoid of emotion or ulterior motives star in hypothetical arrests. Rather, the factual scenarios will take into account that law enforcement officers are just as human as the rest of us and enter the field carrying
their own set of psychological baggage: ripe with prejudices and under pressure, both professional and personal.

Hypothetical examples will be grounded in reality, with the full knowledge that police officers not only are tempted to, but actually do, alter the sequence of events occurring before an arrest to conform to current Fourth Amendment jurisprudence. Evidence obtained illegally ultimately is rendered admissible after creative narration in police reports.

That is the reality, rarely acknowledged, when carefully scripted, fictional scenarios reach the hallowed halls of the U.S. Supreme Court.

That Justice Scalia, of all people, acknowledged that fact, makes this particular victory all the more confounding.

Carelessness Trumps the Exclusionary Rule


This week's Daily Record column is entitled "Carelessness Trumps the Exclusionary Rule."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Carelessness Trumps the Exclusionary Rule

In February 2008, I wrote an column about the U.S. Supreme Court’s decision to grant certiorari in Herring v. U.S.

I predicted the court would conclude that the exclusionary rule did not apply to the facts of the case. At issue in Herring was whether the exclusionary rule should apply to evidence discovered during an unlawful arrest, when a suspect’s arrest is based on erroneous information from another law enforcement officer. Herring was arrested based on an arrest warrant that was recalled, but not purged, from the
computer database, as it should have been.

Earlier this month, the court issued its decision in Herring v. U.S., No. 07-513, and confirmed my suspicion that it would, once again, chip away at the exclusionary rule:

In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, e.g., Leon, 468 U. S., at 909–910, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.’ Id., at 907–908, n. 6 (internal quotation marks omitted). In such a case, the criminal should not ‘go free because the constable has blundered.’”People v. Defore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926) (opinion by Cardozo, J.).

The holding is problematic for any number of reasons, but two of the court’s underlying assumptions are particularly disturbing: One being that any deterrent effect of the exclusionary rule in the case would be “marginal”; the second, that all arrestees are necessarily criminals.

Justice Ginsberg wrote the dissent in the 5-4 decision, noting that the most troublesome outcome likely will be an increase in the wrongful arrests of innocent citizens:

[T]he ‘most serious impact’ of the Court’s holding will be on innocent persons ‘wrongfully arrested based on erroneous information [carelessly maintained] in a computer data base.'

She also addressed the concern I previously raised —that a decision holding the exclusionary rule inapplicable in such a situation would remove any incentive to promptly remove recalled arrest warrants from government databases:

The Court assures that ‘exclusion would certainly be justified’ if ‘the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests.’ … This concession threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means. … In keeping with the rule’s ‘core concerns,’ … suppression should have attended the unconstitutional search in this case.

As Justice Ginsberg notes, widespread use of computer databases is now the norm in America and massive amounts of data are collected, stored and shared among various governmental agencies.

Undoubtedly, such sharing of information has the potential to increase law enforcement’s ability to protect U.S. citizens from harm. The Herring decision, however, essentially guarantees just the opposite will occur. As the economy falters
and budgets tighten, governmental entities most certainly will fail to allocate sufficient resources toward the periodic regulation and review of law enforcement databases, since there is now little, if any, incentive to do so.

As a result, ordinary, law-abiding citizens —especially those with common names or names resembling those on terror watch lists —will bear the brunt of the decision.
Such an outcome is unfortunate, unacceptable and un-American.

Is justice obtained if not consistently applied?

Drlogo11 This week's Daily Record column is entitled "Is justice obtained if not consistently applied?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Is justice obtained if not consistently applied?

The death penalty is one of the few issues with which I have difficulty reconciling my rather liberal criminal defense tendencies.

While the concept of the state executing another human being is repugnant to me, I find that on rare occasions the sordid facts of a highly disturbing case cause a little voice inside
my head to whisper convincingly, “if ever a case merited such a severe penalty, it’s this one.”

The recently decided U.S. Supreme Court opinion, Kennedy v. Louisiana, No. 07-343, is just such a case.

As a mother of two children, I am particularly repulsed by allegations of a rape committed against a defenseless and helpless child. The underlying facts of this case are heart wrenching. The victim was just eight years old when she was brutally raped by her stepfather, resulting in injuries so severe that she required emergency reparative surgery.

Of all the non-fatal cases that might warrant the death penalty, this reprehensible crime most certainly fits the bill. This poor child’s life will never be the same.

Not surprisingly, my feelings were mixed when I learned the court held that imposing the death penalty in child rape cases violated the Constitution. Specifically, the majority of the court concluded that the Eighth Amendment prevented Louisiana from imposing the death penalty for the rape of a child in cases where the crime did not result, nor was intended to result, in the death of the victim.

However, I began to experience an overwhelming sense of relief as I read the majority opinion. The decision was well grounded, both in policy and legal precedent. Despite the horrendous facts of the
case, the court made the correct determination and spared us, as a society, of the burden of attempting to navigate an untraversable slippery slope.

The crux of the issue was not of retribution, but rather, one of practical application. The court focused on the severity and finality of the death penalty and the likelihood that its application would prove to be anything but consistent in child rape cases:

“We find it difficult to identify standards that would guide the decision maker so the penalty is reserved for the most severe cases of child rape and yet not imposed in an arbitrary way… In this context, which involves a crime that in many cases will overwhelm a decent person’s judgment, we have no confidence that the imposition of the death penalty would not be so arbitrary as to be ‘freakis[h].’ … We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim. … Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.”

The potential for the arbitrary application of the death penalty in child rape cases is extraordinary. The lack of uniform implementation of such an irrevocable and final sentence would be anything but just. And justice simply cannot be assured in the absence of consistency.

Guilty Is As Guilty Does

Drlogo11_2This week's Legal Currents column, which is published in The Daily Record, is entitled "Technology and the attorney-client privilege"  The article is set forth in full below, and a pdf of the article can be found here.

My prior articles can be accessed here.

Guilty is as guilty does

The U.S. Supreme Court recently granted certiorari in a capital habeas corpus case arising from the U.S. Court of Appeals for the Ninth Circuit, Arave v. Hoffman, 07-110.

The primary issue to be decided, as framed by the Supreme Court, is: “What, if any, remedy should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to a fair trial?”

While the underlying facts and procedural history of Arave are unusually complicated, the facts relevant to the issue raised in the appeal are fairly simple. The defendant was advised by defense counsel to reject the State of Idaho’s offer to plead guilty in exchange for a life sentence.

His attorney’s recommendation was based on his mistaken belief that, even if Arave received the death sentence following a conviction, Ninth Circuit precedent would result in his sentence being overturned on constitutional grounds.

The Ninth Circuit case relied on by defense counsel, Adamson v. Ricketts, 865 F2d 1011 (Ninth Cir. 1988), struck down Arizona’s death penalty statute, which was virtually identical to Idaho’s death penalty statute. Unfortunately for Arave, subsequent to his conviction after trial the Arizona and Idaho supreme courts disagreed as to whether the two statutes were substantially similar, and the U.S. Supreme Court ultimately resolved the split by upholding the constitutionality of the Idaho statute.

Arave appealed his conviction, alleging he received ineffective assistance of counsel because his trial lawyer failed to consider that the Adamson case could be overturned on appeal.

In light of the way in which the high court framed the issue when it granted certiorari, I am inclined to think the court will conclude that, since Arave had a fair trial, the fact that his attorney may have been ineffective during plea bargaining is irrelevant. In other words, guilty is as guilty does.

Nothing could be further from the truth.

It should not be forgotten that guilt after a “fair” trial does not constitute absolute proof of guilt. To find support for this assertion, look no further than the numerous overturned convictions of those on death row following discovery of exonerating DNA evidence.

When a potentially innocent man’s life is at stake, that the trial appeared to be “fair” but was in fact anything but, is of little consolation after a defendant has been unceremoniously executed. It is for this reason Arave’s guilt or innocence should be of no moment when determining whether he was deprived of counsel at a critical stage in the criminal proceeding.

In the hospital emergency room, when a patient’s life hangs in the balance, there is a reason why the condition is referred to as “critical.”

Likewise, the decision of whether to accept a plea bargain when facing a death sentence is no less critical. An error at this stage of the proceeding could very well determine whether the defendant lives or dies. If the plea bargaining process in a capital case is not a critical stage of the proceeding, then what is?

The U.S. Supreme Court’s decision in this case is equally critical. In a perfect world, Arave would be given the opportunity to reconsider whether to accept the original plea bargain. I fear, however, that in the imperfect world in which we live, simplistic Forrest Gump-like aphorisms may well reign supreme.


And, a video for your consideration:

Supreme Court To Post Oral Argument Transcripts on the Same Day

The United States Supreme Court has announced that beginning in October 2006, the Court will make the transcripts of oral arguments available free to the public on its website on the same day that an argument is heard.   In the past, with only a few exceptions, transcripts were made available online approximately two weeks after oral argument.

The Washington Post has more.

Supreme Court Rejects People v. Goldstein Appeal

I previously posted here and here about People v. Goldstein, a pivotal New York Court of Appeals decision wherein the Court considered the issue of the defendant's right to confront accusers within the context of the Supreme Court's fairly recent decision in Crawford v. Washington.

As reported here, the Supreme Court has refused to hear an appeal of this case:

The Supreme Court on Monday refused to hear an appeal in the case of a mentally ill man whose conviction was overturned in the 1999 death of a woman pushed into the path of an incoming subway train.

The state of New York asked the high court to review the case of Andrew Goldstein, in which the prosecution's psychiatric expert was permitted to testify about statements made to her by people who did not testify in court during the trial.

The New York Court of Appeals found the admission of such information violated the right of the defendant to confront his accusers, and it ordered a new trial.

So, that's that.

Scalia Tells Those Who Think He's Not Impartial to Church-State Matters What to Do--Photographer Gets Fired

A freelance photographer for the Archdiocese of Boston's newspaper was fired for releasing this photograph of Antonin Scalia to the Boston Herald (hat tip: the Legal Reader):

Scalia reportedly made this gesture, which consisted of Scalia flipping his hand under his chin, after being asked what his response was to those who questioned his impartiality on matters off church and state.

The article from the Boston Herald can be found here.