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Economist on the Alabama’s Debtor’s Prison

The new debtors’ prisons

If you are poor, don’t get caught speeding

IN LATE 2010 police in Childersburg, Alabama ticketed both Kristy and Timothy Fugatt for driving with expired licence tags. They were fined $148 each, plus another $198 for Mrs Fugatt, whose licence had expired. They could not afford to pay, so they were placed on probation under the supervision of Judicial Correction Services (JCS), a private company that manages probationers for roughly 200 misdemeanor courts in the south-eastern United States.

JCS also charged each of them a $45 monthly service fee. When they fell behind on their payments, they were charged more fees and threatened with jail. In February 2012 they claim that a Childersburg policeman arrested them at their home, threatened them with a Taser, told them their children would be placed in state care and took them to prison. They were released only after relatives brought $900 to the Childersburg jail. (Robert McMichael, the head of JCS, refused to comment on any of these allegations.)

Monthly charges to private-probation companies are just one of a growing array of fees levied by America’s criminal-justice system. Such fees are distinct from fines, imposed to punish or deter. Their aim is to make wrongdoers cover some of the costs of the system that punishes them.

Another law for the poor

For example, a 2010 report by the American Civil Liberties Union (ACLU) found that fees and fines covered two-thirds of the operating budget of the Orleans Parish criminal court in Louisiana. That is the appeal of private-probation firms: small fines often go unpaid because local governments cannot afford to chase every speeding ticket. JCS claims that without officers overseeing probation, only 30% of offenders complete it; with JCS’s services that rises to 70%. Even more appealing to cash-strapped municipalities, private-probation companies offer their services at no cost to the taxpayer. Instead, boasts JCS, “Supervision is completely offender-funded.”

Defendants who cannot pay fees upfront are put on payment plans, which often come with start-up and monthly administrative fees. Many of these fees are small, but for poor Americans they impose an additional burden that can last long after a judicially-imposed sentence has ended. A 2010 study by the Brennan Centre for Justice, a law and public-policy institute, found that at least 13 of the 15 states with the largest prison populations allowed probation to be extended beyond the judicially-imposed terms for non-payment of criminal-justice debt. A judgment handed down in July 2012 against the town of Harpersville, Alabama, which hired JCS to manage its misdemeanour probation, found that fees could turn a $200 fine into a 41-month-long, $2,100 ordeal.

That same judgment accused Harpersville of operating a “debtors’ prison”, though the judge noted that “a more accurate description of the Harpersville Municipal Court practices might be that of a judicially sanctioned extortion racket.” Harpersville, like many other places, jailed people who failed to pay probation fines and fees—although the cost of imprisonment often exceeds the costs for which they are liable. In 2010 North Carolina’s Mecklenburg County spent over $40,000 jailing people for non-payment of criminal-justice debt, and collected just $33,476 from them. Courts in Orleans Parish routinely offered defendants the choice of 30 days in prison or $100 in fines, even though the city had to pay the parish sheriff $22 per day for each inmate it sentenced, and the federal appellate court for the circuit that includes Louisiana found such “fine or time” sentences illegal.

That Brennan Centre study found that nine of the 15 American states with the largest prison populations permit “collection fees” on criminal-justice debt, which are often payable to private firms. Only one of the 15 (Texas) exempts penniless defendants from additional collection fees.

All this occurs routinely, though the Supreme Court ruled in 1983 that before a court jails someone for failing to pay a fine or fee, it must first ensure that his failure to pay was wilful—that he could have paid but chose not to. Jailing someone because he cannot pay violates the 14th Amendment’s Equal Protection Clause. Similarly, 13 of the 15 states studied by the Brennan Centre charge defendants public-defender fees ($50 for a misdemeanour and $100 for a felony defence in Florida; in Virginia, as much as $1,235 for some felonies), even though the Supreme Court ruled in 1963 that the Sixth Amendment required courts to provide lawyers at no charge for indigent defendants.

In some states people with outstanding criminal-justice debt cannot vote. In others they lose public benefits such as food stamps and housing assistance. Some states suspend driving licences, making it harder for people to get to the jobs they need to do to pay off their debt. And beyond that, as Eric Balaban of the ACLU notes, such fees create “a two-tiered system of justice, in which the wealthy can satisfy the system quickly, while a poor person charged with the same offence can face years of penalties.”

http://www.economist.com/news/united-states/21589903-if-you-are-poor-dont-get-caught-speeding-new-debtors-prisons

White Collar Crime Blog – Assistant Federal Public Defender Debra Migdal

It is always a little  scary when we are reminded how much  power  a judge has over a person’s life, livelyhood, and freedom.  I also wonder if this had been a prosecutor if there would have been these sanctions.  I notice that the prosecutor who asked for the sanctions, which his own office said he did not have the authority to do, did not appear to have been  sanctioned by the district  judge.

Sixth Circuit Vindicates Assistant Federal Public Defender Debra Migdal.

By Solomon Wisenberg

How many federal appellate opinions begin like this?

“An attorney’s reputation is her most valuable possession. It forms the basis for her peers’ view of her and plays an important role-often a determinative one-in how she advances in her career. This case began with a government attorney’s unauthorized filing of a motion for sanctions against Debra K. Migdal, an attorney who has served as an Assistant Federal Public Defender for nearly 25 years. It quickly took on a life of its own, resulting in two district-court orders strongly, publicly, and, we conclude, erroneously reprimanding Migdal. Because the record does not support any basis for these orders, we VACATE the sections of the first order pertaining to sanctions, REVERSE the second order in its entirety, and DISMISS the sanctions proceeding against Migdal.”

And how many of them end like this?

“This opinion closes the book on a regrettable chapter in Debra Migdal‘s career, clears her of all claims that her conduct in this matter was sanctionable, and removes any taint of public censure on her reputation.”

As anyone who practices criminal law in the federal court system knows, different districts, and sometimes different judges within a district, have different rules, formal and/or informal, for the issuance of subpoenas demanding early document production pursuant to Fed. R. Crim. Proc. 17(c). Some districts allow prosecutors and defense attorneys to issue the subpoenas, and examine documents, on their own. Other districts require a motion and court order. (Of course, the playing field is uneven, because the prosecution typically has the evidence it needs well before trial through the use of grand jury subpoenas.)

In 2011 Debra Migdal was an Assistant Federal Public Defender in the Northern District of Ohio handling a case in front of U.S. District Judge John R. Adams. At the time, neither the Northern District of Ohio nor Adams had any formal policy regarding the issuance of Rule 17(c) subpoenas. Migdal issued two Rule 17(c) subpoenas on her own, one of which was sent to the custodian of records at the U.S. Border Control, calling for the early production of materials in Judge Adam’s court, but on a day she designated that was prior to a scheduled court date. Two previous district court opinions in the Northern District, neither of which were written by Judge Adams, had come to opposite conclusions about the propriety of issuing such subpoenas absent the court’s permission. Migdal was unaware of the opinion holding that a court order is necessary.

Migdal used Administrative Office of the U.S. Courts Form AO 89, which commands the both the appearance and testimony of the witness and, if necessary, the production of documents. In other words, unless the issuer crosses out the part of the authorized pre-printed form calling on the witness to testify, he/she is always commanded to appear and testify, even though in many cases the issuing party is only interested in obtaining documents. By way of contrast, on the federal civil side, there are two authorized subpoena forms, one calling for documents only and one calling for witness testimony.

AUSA Gregory Sasse told the Border Patrol Agent to ignore the subpoena. Sasse then moved to quash the subpoena and asked the court to impose whatever sanctions it deemed appropriate. Sasse wasn’t authorized to move for sanctions and his superiors later withdrew this request. But Judge Adams was clearly not happy with Migdal. He held two hearings and publicly sanctioned Migdal under 28 U.S.C. Section 1927 and his inherent authority.

Section 1927 reads as follows:

“Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

The Sixth Circuit, noting that nothing whatsoever in the statute’s language authorizes the imposition of non-monetary sanctions, ruled that Judge Adams abused his discretion in sanctioning Migdal under 1927.

The Sixth Circuit then rejected the three rationales Judge Adams relied on for sanctioning Migdal pursuant to his inherent authority. (Any sanctions against Migdal required a showing of bad faith on her part.)

1. Adams had ruled that a criminal defendant is entitled to materials under Rule 17(c) “only after requesting-and not getting-the necessary items from the government via Rule 16 discovery.” Incredibly, he believed he had the inherent authority to sanction Migdal for failing to follow this protocol. But as the Sixth Circuit pointed out, no such protocol exists under Rules 16 and 17.

2. Adams had ruled that Migdal violated her duty of candor to to the court by commanding production at a  hearing that had not been scheduled or requested. (He referred to it as a “fabricated” hearing.) Migdal acknowledged that the subpoenas were defective in this regard, apologized to the court, and argued that she had not acted in bad faith. The Sixth Circuit agreed, emphasizing that: a) AO Form 89 lacks clarity; b) Migdal called for production in Judge Adams’ courtroom, so she was obviously not trying to hide anything from the court; c) the longstanding practice in Migdal’s office and in many Federal Public Defender Offices, was to issue Rule 17(c) subpoenas without prior court approval; and d) Migdal relied on a prior Northern District of Ohio opinion specifically authorizing issuance of Rule 17(c) subpoenas without prior court approval. Judge Adams noted that he preferred the contrary judicial opinion. “But Judge Adams’ inclination to side with one judge’s view over that of another obscures the point that Migdal did not act in bad faith when she hewed to at least one judge’s reading of the controlling rule.”

3. Adams had ruled that Migdal “utterly disregarded Rule 17(c)’s implicit requirement that the court must approve and order early-production subpoenas.” (internal quotations omitted). The Sixth Circuit carefully pointed out that reasonable people could disagree on this point, as evidenced by the conflicting district court opinions. That Migdal chose to take a view of Rule 17(c) at odds with Judge Adams’ position, at a time when there was no clear controlling authority, could hardly amount to bad faith.

Throughout Judge Jane Stranch’s opinion, for a unanimous Sixth Circuit panel, there runs a tone of incredulity at Judge Adams’ actions in “branding a blemish on Migdal’s reputation.” It should never have happened. It should never happen again.

Here is the Sixth Circuit Migdal Vindication Opinion.

Congratulations to AFPD Migdal, by all accounts a fearless and hardworking AFPD. Congratulations to her attorney Greg Poe, of Poe & Burton, who wrote the brief and argued the case.

(wisenberg)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2013/11/sixth-circuit-vindicates-assistant-federal-public-defender-debra-migdal.html

WSJ – Cellphone-Wiretap Ruling Is a Headache for Prosecutors

Opinion Says Authority to Listen In on Calls Doesn’t Cross Federal-Court-District Boundaries

JOE PALAZZOLO

A recent ruling by the Fifth U.S. Circuit Court of Appeals in New Orleans said that while cellphones may move easily between the country’s 94 federal districts, the authority to tap them doesn’t. The ruling affects the wiretaps typically used in criminal investigations, especially by the Drug Enforcement Administration, which is part of the Justice Department.

Former law-enforcement officials said the Aug. 26 opinion is among the most significant in recent memory governing the use of such wiretaps and could pose administrative headaches for law-enforcement agencies, unless Congress stepped in, which most regard as unlikely.

The appeals court said that for the federal government to intercept calls on a cellphone, either the phone itself or the hub where agents listen in on the calls must be in the district of the judge who authorized the wiretap. The Justice Department had previously interpreted the law to allow it to continue intercepting calls on a phone that wandered outside of the district in which the wiretap was authorized, former officials said. Now, federal investigators in Louisiana, Mississippi and Texas—the states covered by the Fifth Circuit—run the risk of having evidence suppressed if a cellphone they have tapped crosses federal boundaries.

“God help you if the [suspect] is driving down the highway, having a conversation on his cellphone and crosses into another district,” said Mark Eckenwiler, a former Justice Department official who worked on the Fifth Circuit case. While the ruling is only legally binding on those states, defense lawyers across the nation are also likely to invoke it as they seek to get wiretap evidence against their clients thrown out, he added.

The Justice Department has asked the court for a month to consider its next step. A DEA spokeswoman referred questions to the Justice Department, which declined to comment.

In the Fifth Circuit case, DEA agents and federal prosecutors in southern Mississippi who were investigating a drug-trafficking organization received authorization from a local judge to tap the cellphone of Richard North, a Houston native whom they suspected of supplying local dealers with cocaine. Mr. North was stopped in May 2009 by Texas state troopers acting on information from federal investigators who believed he was on his way to make a delivery in Mississippi.

He was released after a search turned up no drugs, and he headed home to Houston. Unaware that his phone was tapped, he called a friend and was overheard telling her that the troopers had failed to uncover the cocaine hidden in his car, according to court documents. A DEA agent listening in from Louisiana forwarded the information to officers in Texas, who stopped him a second time and found the stash.

Mr. North pleaded guilty to conspiracy to distribute five kilograms of more of cocaine, but he reserved the right to challenge the wiretap on appeal to the Fifth Circuit.

The appeals court decided that the Mississippi judge erred in issuing the warrant, because the phone was in Texas, investigators were in Mississippi and the listening post was in Louisiana, putting them all in separate districts. “In short, the district court…lacked the authority to permit interception of cellphone calls from Texas at a listening post in Louisiana,” the Fifth Circuit said, in an unsigned opinion.

Federal law exempts “mobile interception devices” from jurisdictional requirements, and at least one appeals court, the Seventh U.S. Circuit Court of Appeals in Chicago, has interpreted such devices to include cellphones.

Hanni Fakoury, a staff attorney at the Electronic Frontier Foundation, a civil-liberties group, said in an email that the Seventh Circuit ruling allowed the Justice Department to seek out “a more advantageous jurisdiction (and a more sympathetic judge) before applying for a wiretap.” The Fifth Circuit, however, said “mobile interception device” refers to a device used to capture communications and not a mobile phone, restoring what Mr. Fakoury described as an important safeguard against prosecutors seeking judges believed to provide preferential treatment to the government.

Norman J. Silverman, a lawyer for Mr. North, said the decision was the first major “reining in” of the Wiretap Act since 1974, when the Supreme Court ruled that the power to authorize wiretap applications inside the Justice Department was restricted to a few top officials.

In the near term, law-enforcement officials may need to set up temporary listening posts in districts where wiretap warrants are issued, said Mr. Eckenwiler, now senior counsel at Perkins Coie LLP. That solution is unlikely to sit well with the DEA, which uses these kinds of wiretaps more than any other agency and relies heavily on regional listening posts outfitted with sophisticated eavesdropping technology and staffed full-time with federal employees and contractors, who transcribe and translate what they hear. Of the 1,354 federal wiretaps authorized in 2012, 94% were used in narcotics investigations, according to the administrative office of the U.S. Courts.

“If you want to run 15 intercepts, the best place to run them is in one place—not 15 places,” said David Wilson, a retired 32-year veteran of the DEA.

The Justice Department could funnel wiretap applications to the districts with regional listening posts, but that could create delays for cases in which taps need to “get up” quickly to determine deliveries and shipment of drugs, said Stephen J. T’Kach, a former Justice Department official who worked in the surveillance unit.

Write to Joe Palazzolo at joe.palazzolo@wsj.com

http://online.wsj.com/article/SB10001424127887323864604579067033554325594.html

Judge Rejects New York’s Stop-and-Frisk Policy

 

The New York Times

 


August 12, 2013

By 

A federal judge ruled on Monday that the stop-and-frisk tactics of the New York Police Department violated the constitutional rights of minorities in the city, repudiating a major element in the Bloomberg administration’s crime-fighting legacy.

The use of police stops has been widely cited by city officials as a linchpin of New York’s success story in seeing murders and major crimes fall to historic lows. The police say the practice has saved the lives of thousands of young black and Hispanic men by removing thousands of guns from the streets.

But the judge, Shira A. Scheindlin, found that the Police Department resorted to a “policy of indirect racial profiling” as it increased the number of stops in minority communities. That has led to officers’ routinely stopping “blacks and Hispanics who would not have been stopped if they were white.”

The judge called for a federal monitor to oversee broad reforms, including the use of body-worn cameras for some patrol officers, though she was “not ordering an end to the practice of stop-and-frisk.”

In her 195-page decision, Judge Scheindlin concluded that the stops, which soared in number over the last decade as crime continued to decline, demonstrated a widespread disregard for the Fourth Amendment, which protects against unreasonable searches and seizures by the government, as well as the 14th Amendment’s equal protection clause.

Mayor Michael R. Bloomberg angrily accused the judge of deliberately denying the city “a fair trial” and said the city would file an appeal.

Striking a defiant tone, Mr. Bloomberg said, “You’re not going to see any change in tactics overnight.” He said he hoped the appeal process would allow the current stop-and-frisk practices to continue through the end of his administration because “I wouldn’t want to be responsible for a lot of people dying.”

The judge found that for much of the last decade, patrol officers had stopped innocent people without any objective reason to suspect them of wrongdoing. But her criticism went beyond the conduct of police officers.

“I also conclude that the city’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner,” she wrote, citing statements that Mr. Bloomberg and the police commissioner, Raymond W. Kelly, have made in defending the policy.

Judge Scheindlin ordered a number of remedies, including a pilot program in which officers in at least five precincts across the city will wear cameras on their bodies to record street encounters. She also ordered a “joint remedial process” — in essence, a series of community meetings — to solicit public comments on how to reform the department’s tactics.

The judge named Peter L. Zimroth, a partner in Arnold & Porter L.L.P., and a former corporation counsel and prosecutor in the Manhattan district attorney’s office, to monitor the Police Department’s compliance with the United States Constitution. The installation of a monitor will leave the department under a degree of judicial control that is certain to shape the policing strategies under the next mayor.

Judge Scheindlin’s decision grapples with the legacy of Terry v. Ohio, a 1968 ruling by the Supreme Court, which held that stopping and frisking was constitutionally permissible under certain conditions. But she said that changes to the way the New York Police Department employed the practice were needed to ensure that the street stops were carried out in a manner that “protects the rights and liberties of all New Yorkers, while still providing much needed police protection.”

The judge found that the New York police were too quick to deem suspicious behavior that was perfectly innocent, in effect watering down the legal standard required for a stop.

“Blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites,” she wrote.

She noted that officers routinely stopped people partly on the basis of “furtive movements,” a category that officers have testified might encompass any of the following: being fidgety, changing directions, walking in a certain way, grabbing at a pocket or looking over one’s shoulder.

“If officers believe that the behavior described above constitutes furtive movement that justifies a stop, then it is no surprise that stops so rarely produce evidence of criminal activity,” Judge Scheindlin wrote.

She found that in their zeal to identify concealed weapons, officers sometimes stopped people on the grounds that the officer observed a bulge in the person’s pocket; often it turned out that the bulge was caused not by a gun but by a wallet.

“The outline of a commonly carried object such as a wallet or cellphone does not justify a stop or frisk, nor does feeling such an object during a frisk justify a search,” she ruled.

She emphasized what she called the “human toll of unconstitutional stops,” noting that some of the plaintiffs testified that their encounters with the police left them feeling that they did not belong in certain areas of the city. She characterized each stop as “a demeaning and humiliating experience.”

“No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life,” she wrote.

One of the plaintiffs in the case, Lalit Clarkson, 31, a union organizer, said after the ruling that “the stop-and-frisk policy criminalizes a whole race and community of people, just for going to work, going to get some food, going on a train to go downtown.”

The decision, he said, represents the legal system’s validation of what the black community has known for a long time: that the stop-and-frisk tactics rely on racial profiling.

“What we know, in our community, to be the truth, has never before gone through a massive legal process” and been “shown, point by point, step by step” to be true, he said.

The judge’s ruling, in Floyd v. City of New York, a 2008 class-action lawsuit that represents the broadest legal challenge to the department’s practices, follows a two-month nonjury trial in Federal District Court in Manhattan earlier this year. Her decision cites testimony of about a dozen black or biracial men and one woman who described being stopped, as well as the conclusions of statistical experts who studied police paperwork describing some 4.43 million stops between 2004 and the middle of 2012.

But the stops were not the end of the problem, Judge Scheindlin found. After officers stopped people, they often conducted frisks for weapons, or searched the subjects’ pockets for contraband, like drugs, without any legal grounds for doing so. Also, she found that during police stops, blacks and Hispanics “were more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband.”

About 83 percent of the stops between 2004 and 2012 involved blacks and Hispanics, even though those two demographics make up just slightly more than 50 percent of the city’s residents. Mr. Bloomberg and Mr. Kelly have explained that disparity by saying it mirrored the disproportionate percentage of crimes committed by young minority men. But Judge Scheindlin dismissed the Police Department’s rationale.

“This might be a valid comparison if the people stopped were criminals,” she wrote, explaining that there was significant evidence that the people being stopped were not criminals. “To the contrary, nearly 90 percent of the people stopped are released without the officer finding any basis for a summons or arrest.”

Rather, Judge Scheindlin found, the stops overwhelmingly involved minority men because police commanders had come to see them as “the right people” to stop.

“It is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals,” she wrote.

Mr. Bloomberg pledged that lawyers for the city, in appealing to the United States Court of Appeals for the Second Circuit, would argue that the judge was biased against the police. As evidence, he cited the fact that the judge, who has overseen numerous stop-and-frisk cases over the last decade, had encouraged the plaintiffs to steer the Floyd case into her courtroom by marking it as related to an earlier case she had overseen.

The mayor said the judge did “not understand how policing works” and had misinterpreted what the Constitution allowed.

Cutting Your Losses

I was on the trial docket for a case that had been appealed from District Court.  (In Alabama, misdemeanor and traffic cases in District or Municipal courts can be appealed to the Circuit Court where there is a new trial before a different Judge and a Jury if you request it.) In this case the Government had made a fatal mistake of which they had been told about for over a year.  They never took any steps to correct the error.

I appealed the case to Circuit Court to get it in front of a judge who would listen to my argument regarding the Government’s problem.  Going to trial required a lot of time to prepare for the trial,  that cost my client a large amount of money.  In the end the government dismissed the case.  I have never understood why some governmental agency refuse to dismiss cases when they cannot get a conviction.  It saves the taxpayers money and gets it off their desk.

As criminal defense attorneys we try to resolve cases in the best interest of our clients, in  the shortest period of time as possible.  I have always wondered why some government employees are not the same way with their cases.

 

Cellphone privacy issue heats up

By Lyle Denniston

More than 80 percent of adult Americans have a cellphone, and they make heavy use of them: calling for more than 2.3 trillion minutes a year and sending nearly 2.2 trillion text messages annually.  And it is fair to assume that a good many of those users consider what they do with their devices to be private.  It is far from certain, though, that the Constitution protects cellphone privacy.  The courts are starting to give answers to that question.

Even as courts struggle with the issue of whether they have any role to play in reviewing the government’s sweeping global surveillance of all kinds of electronic communications, including cell phone calls and texting, other courts are deeply involved in examining the constitutionality of government monitoring of cell phone use as part of investigations of crime.

This week, in back-to-back decisions, two federal appeals courts explored the privacy issue, and came to quite different conclusions, though in different settings.   In both cases, the constitutional issue was the same: whether the Fourth Amendment requires the government to get a court-approved search warrant to monitor cell phone use.  One court said yes, the other no.

One of those rulings involved a routine illegal drug case originating in Boston, the other focused on three FBI investigations in Texas.  In the Boston case, officers learned where a suspect lived, and got other information about him, by examining the contents of a cell phone that the man had with him when he was arrested.   The focus of the Texas investigations remains under wraps but the case involves a request by federal agents to obtain tracking data from cell towers operated by telephone companies – in other words, electronic tracks of the places where a cell phone has been used.

In the Boston case, the officers did not have a search warrant; indeed, they believed that they did not need one.  They got access to the man’s cell phone at the police station, and they simply engaged it to get information, just as they might look into his pockets to make sure he had no weapons. They turned out to be wrong about their authority to do that.   The Circuit Court of Appeals for the First Circuit had ruled earlier, and essentially reaffirmed on Monday, that the officers’ operation of the cell phone to get calling data was a search, requiring a warrant under the Fourth Amendment.

A cellphone, according to the First Circuit’s view, is not just a telephone; some of those devices have huge electronic storage capacity, and they contain much that is highly personal in nature – photos, videos, messages of all kinds, contacts, Internet searches, purchases, financial and medical records.  To the millions of Americans who carry around such devices, with them virtually everywhere they go, they are a trove of private data, that court found.

In the Texas probes, the federal agents were relying upon a federal law, the Stored Communications Act of 1986, which allows access to cellphone data upon a government request based on less suspicion than would be required for a search warrant.  In a ruling on Tuesday, the U.S. Court of Appeals for the Fifth Circuit decided that no warrant was necessary.  It approved the applications for cellphone tracking data, finding that the location information belonged to the telephone company and was not private for the phone users.

Once an individual makes a call, leaving an electronic data point at the nearest cell tower, that location has been exposed to the telephone company, and the phone user cannot complain if the company later hands that information over to the government, the Fifth Circuit Court said.

Although the facts differ in significant ways, the issue for the courts in each instance was whether the users of the cellphones had a “reasonable expectation of privacy,” one that most people would respect.  Over the years, as technology has advanced, the Supreme Court has not moved in a straight line in defining when government use of a new device or method intrudes on privacy in violation of the Fourth Amendment.

Just recently, the Supreme Court ruled that it did not invade the privacy of a person arrested on suspicion of a serious crime for police to use the new technology of DNA testing to take a sample from the suspect to seek a possible link to a different crime.   But the year before, the court ruled that police ordinarily should get a warrant before they attach a GPS tracking device to monitor, for a period of time, the movements a suspect made in his car.

In earlier decisions, the court has allowed police to conduct aerial surveillance of someone’s outdoor yard, even though they could not go into the yard at ground level, but the court also barred police from using a heat-sensing device aimed at the exterior wall of a house to see if marijuana was being grown inside.   The court also has reached varying results on police authority to use drug-sniffing dogs.

So far, the court has had little opportunity to explore the Fourth Amendment implications of cellphones’ use.  In fact, it recently turned down two appeals seeking clarification of claims to cell phone privacy.

But the conflicts among lower courts on that very issue have been growing deeper, thus increasing the chances that the Justices will, perhaps soon, get drawn into a case that provides a clear-cut test.  The Boston case may be such a case, because the federal government had fought energetically against the need to obtain a search warrant to examine the contents of a cellphone obtained during an arrest procedure.

And, while the Texas investigations case is not subject to appeal to the Supreme Court, because it only involved an effort by the government to get a cellphone location data order from a court, and there was no formal party on the other side of the case, other federal appeals courts are considering the privacy issue surrounding such data in cases involving actual criminal convictions, and rulings in that setting might well wind up in the Supreme Court.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

http://blog.constitutioncenter.org/2013/08/cellphone-privacy-issue-heats-up/

Interesting Article on Warrantless Searches

When Cops Don’t Need a Warrant To Crash Through Your Door

“Exigent circumstances” provide a multi-purpose end-run around the Fourth Amendment

 | July 31, 2013

The Fourth Amendment protects us from random invasions of our homes by police, right? We know we’re secure in our “persons, houses, papers, and effects” unless the cops demonstrate probable cause to a judge and get a warrant. Except… Except when they don’t. The fact of the matter is that police have a lot of leeway to bust your door down and take a look around if they fear that waiting for a warrant could lead to loss of evidence or danger to people. Or lead to something, anyway. That end run around the Fourth Amendment is called “exigent circumstances,” and nobody really seems to be sure where it starts and stops. Except for the police. They know it when they see it.

On July 17, a law enforcement task force including federal and local officers barged into the Sarasota, Florida home of Louise Goldsberry after a brief standoff. The officers, looking for a suspected child molester in Goldsberry’s apartment complex, insisted that the nurse’s frightened reaction to the sight of a stranger pointing a gun through her kitchen window was all the reason they needed to assume their target’s presence. “I feel bad for her,” U.S. Marshal Matt Wiggins told Sarasota Herald-Tribune columnist Tom Lyons. “But at the same time, I had to reasonably believe the bad guy was in her house based on what they were doing.”

What Goldberry and her boyfriend were doing was cowering in the presence of armed invaders. But that really might be all that it takes.

The problem lies in the definition of exigent circumstances — or, rather, the lack thereof. An unsigned article on the subject in the Alameda County, California, District Attorney’s office journal, Point of View explained:

[S]trangely, the courts have been unable to provide officers with a useful definition of the term “exigent circumstances.” Probably the most honest definition comes from the Seventh Circuit which said that “exigent circumstances” is merely “legal jargon” for “emergency,” explaining that lawyers employ the more grandiose terminology “because our profession disdains plain speech.”

The article goes on to explain, “Not only is the definition of the term elusive, the number of situations that are deemed ‘exigent’ keeps expanding.” Where once exigent circumstances required a threat to public safety, they expanded to encompass the potential for a subject to escape, or just to dispose of evidence by, for example, flushing drugs down the toilet. Exigent circumstances now also include a new and looser category of situations involving “community caretaking” which, at least theoretically, justify some kind of immediate action, including kicking in doors without warrants.

Fourth AmendmentDoes the Supreme Court provide any guidence? Well…some. Said the court in 2006’s Brigham City v. Stuart, following on a string of similar rulings, an entry and search is justified if it is “objectively reasonable” under the circumstances, that reasonableness being determined by public concerns outweighing the intrusiveness of police barging in. In that case, police entered a backyard after spotting juveniles drinking beer and and then walked into a private home after seeing a fight in progress through a window. The court ruled the entry and subsequent arrests justified. There’s no check list to follow in making that call, leaving the decision to the officers on the scene. As the author of the Point of View article concedes, “Because of these developments, the term ‘exigent circumstances’ has become a bloated and almost meaningless abstraction.”

But in the Sarasota case, the exigent circumstances were created by the police themselves. Louise Goldsberry screamed and cowered because a police officer pointed a gun at her through her own kitchen window. Marshal Wiggins and company used the fact that they’d scared the hell out of Goldsberry as the justification for entering and searching her home. That can’t be OK, can it?

As it turns out, it just might be. The U.S. Supreme Court addressed the issue of police-created exigencies in the 2010 case of Kentucky v. King, involving police entry into an apartment after they heard movement in response to their knock on the door. The sounds, the officers insisted, could have been made by the suspects destroying evidence. Justice Samuel Alito wrote for the majority, “The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.”

After the King decision, the FBI posted guidance on its Website about when and how police officers could conduct searches in response to circumstances of their own making.

In holding that the exigent circumstances exception applies as long as the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment, the Court eliminated the confusion inherent in the tests used by the lower courts. The rule announced by the Court clearly allows officers confronted with circumstances, such as those present in King, to take appropriate steps to resolve the emergency situation. However, officers must be mindful of the fact that they cannot demand entry or threaten to break down the door to a home if they do not have independent legal authority for doing so. According to the Court, to do so would constitute an actual or threatened violation of the Fourth Amendment and, thereby, deprive the officers of the ability to rely upon the exigent circumstances exception.

No threat to illegally crash through the door, no foul.

Pointing a gun through a window might constitute a heart-stopping threat to life and limb, but not necessarily to protections against unreasonable search and seizure. In a world of loosely interpreted reasonableness under the circumstances, it could pass court scrutiny.

Unfortunately, “could” and “might” are likely as close as we can get to knowing if a rush of police officers through a door makes the legal cut, short of judicial scrutiny in a given case. Police on the scene are empowered to use their own judgment as to whether an “emergency,” defined ever-more loosely as time goes on, exists that justifies forcing an entry into private property in the absence of a warrant.

Fourth Amendment notwithstanding, we really do live in a world where screaming when an unidentifiable police officer points a gun at you through your window may be all it takes to authorize knocking your door off its hinges and dragging you outside in handcuffs.

http://reason.com/archives/2013/07/31/cops-dont-necessarily-need-a-warrant-to