Tag Archive | Warrantless Search

NYT- Latest Release of Documents on N.S.A. Includes 2004 Ruling on Email Surveillance

The New York Times

November 18, 2013

By  and 

WASHINGTON — The Obama administration released hundreds of pages of newly declassified documents related to National Security Agency surveillance late Monday, including an 87-page ruling in which the Foreign Intelligence Surveillance Court first approved a program to systematically track Americans’ emails during the Bush administration.

“The raw volume of the proposed collection is enormous,” wrote Judge Colleen Kollar-Kotelly, who was then the chief judge on the secret surveillance court. The government censored the date of her ruling in the publicly released document, and many sections — including a description of what she had been told about terrorism threats — were heavily redacted.

The ruling was among a trove of documents that were declassified and made public by the Office of the Director of National Intelligence in response to Freedom of Information Act lawsuits, including those by the American Civil Liberties Union and the Electronic Freedom Foundation.

Many of the documents have historic significance, showing how Bush administration surveillance programs that were initially conducted without court oversight and outside statutory authorization were brought under the authority of the surveillance court and subjected to oversight rules. The documents also included reports to Congress, training slides and regulations issued under President Obama.

The Bush administration temporarily shut down its bulk collection of email logs after Justice Department lawyers raised legal concerns in March 2004. Judge Kollar-Kotelly declared the collection lawful in July 2004, according to documents leaked by Edward J. Snowden, the former N.S.A. contractor.

The email metadata — information like the identities of senders and recipients and the and the dates of messages, but not the content — was used in searches of unknown associates of terrorism suspects. The Obama administration has said it shut down the email metadata program in 2011 for “operational and resource” reasons.

Several other court documents released on Monday indicated that the program had difficulties with collecting Internet communications beyond the scope of what the court had authorized. Redactions made it difficult to understand the specifics of the problems, but an accompanying statement offered more details. At one point, it said, the government had shut down the program for several months “because of the significance and complexity of these incidents.”

The New York Times reported in 2009 that the N.S.A. had intercepted private email messages and phone calls of Americans on a scale that went beyond broad legal limits. A statement released on Monday said that an excess collection problem in 2009 was the result of “longstanding compliance issues associated with N.S.A.’s electronic communications and telephony bulk metadata collection programs” and that the N.S.A. “recognized that its compliance and oversight structure had not kept pace with its operational momentum.”

In a statement, James R. Clapper Jr., the director of national intelligence, said that with the new releases, nearly 2,000 pages about surveillance matters had been declassified since President Obama instructed him in June to “make public as much information as possible about certain sensitive programs while being mindful of the need to protect sensitive classified intelligence activities and national security.”

“Release of these documents reflects the executive branch’s continued commitment to making information about this intelligence collection program publicly available when appropriate and consistent with the national security of the United States,” he said.

The trove also included the Bush administration’s 2006 application for initial approval by the surveillance court to collect bulk logs of all domestic phone calls under a provision of the Patriot Act that allows the collection of business records deemed “relevant” to an investigation, another program it had previously undertaken unilaterally. The call record program is still active.

“Here, the government’s interest is the most compelling imaginable: the defense of the nation in wartime from attacks that may take thousands of lives,” said the Justice Department brief, which was signed by Alberto Gonzales, who was then attorney general. “On the other side of the ledger, the intrusion is minimal” into privacy concerns because the calling logs did not include any content of communications.

The documents show that as early as 2006, an inspector general review recommended tighter controls over the bulk telephone metadata program to reduce the risk that they would violate the limits on the collection of data. In 2009, the court would sharply rebuke the N.S.A. for violating its own procedures and misleading the nation’s intelligence court about how it used the telephone call logs.

Jameel Jaffer, a senior lawyer with the A.C.L.U., argued that the release of the documents demonstrated what he argued were structural problems with the surveillance court, which decides major issues.

“This a reminder a lot of the most important and far-reaching decision of the past decade was issued by this court, which meets in secret and hears only from the government and doesn’t publish its decisions,” Mr. Jaffer said.

The full scope and details of any revelations in the documents were not immediately clear because of the large volume of materials and the late hour at which they became available. It appeared likely to take days for journalists, privacy advocates and other close watchers of surveillance policy issues to finish scouring the trove.

http://www.nytimes.com/2013/11/19/us/latest-release-of-documents-on-nsa-includes-2004-ruling-on-email-surveillance.html?partner=rss&emc=rss&pagewanted=print

The FISA Courts Are Even Worse Than You Knew

By Jeffrey Rosen

Last week, with little fanfare, the Foreign Intelligence Surveillance Court (FISA) released a previously secret opinion upholding the National Security Agency’s mass surveillance of telephone metadata. The opinion, which deserves more attention than it has received, is a cavalier piece of work. Judge Claire Eagan fails even to consider, let alone to rebut, the strong arguments suggesting that the NSA programs violates both the U.S. Constitution and section 215 of the Patriot Act, the statutory provision the government has invoked to authorize it. The Electronic Privacy Information Center (EPIC) has asked the Supreme Court to conduct an independent review of the legality of the NSA surveillance program, and Justice Antonin Scalia said yesterday that he expects the Court to eventually hear a version of the case. But because the Court may be unlikely, for technical reasons, to rule squarely on the merits, congressional reform of the FISA court is now more urgent than ever.

Read rest of the article here http://www.newrepublic.com/article/114853/fisa-court-decision-upholding-surveillance-joke

Another example of the use of Protective Sweep to do a Warrantless Search

4th Amendment  – S.D.Ala.: Defendant closed door on arresting officers, got dressed, and surrendered; protective sweep unjustified

USMS showed up at defendant’s house to arrest him. He came to the door in his underwear, and there was a locked security door between him and the officers. He said he’d unlock the door, and he closed the inside door. They heard sounds inside. The officers essentially panicked that he was arming himself, and they were preparing to pry the security door off when he opened it, unlocked it, and came out and surrendered. The protective sweep under Buie was unjustified because there was no reasonable belief anybody else was inside. Otherwise, Buie would justify an entry in every case. United States v. Simmons, 2013 U.S. Dist. LEXIS 106328 (S.D. Ala. July 30, 2013):

[More:]

First, Simmons’ “retreat” lasted only 45 seconds, which can hardly be characterized as a “long delay.” After he returned to the back door, unlocked the security door, stepped outside and was arrested, whatever suspicion may have been caused by his retreat was dispelled. The movement the deputies heard inside the house occurred in the 45-second interval after Simmons closed the door and before he came back and opened the security door. After Simmons came out, Tameka Jones also came outside, and there was no evidence that any movement was heard from inside after that point. This evidence—brief retreat, movement from inside, followed by the exit of two persons from the residence—does not justify the assumption that other people remained inside. See United States v. Archibald 589 F.3d 289, 300-01 (6th Cir. 2009) (officers could not know from hearing movement inside prior to arrest whether more than one person was inside).

To the extent that the government relies on the danger posed by the situation to justify the search, that reliance is misplaced. The charges against the Defendant cannot provide the basis for reasonable suspicion to conduct a protective sweep after the Defendant has been taken into custody and no longer poses a danger. See United States v. Colbert, 76 F.3d 773, 777 (6th Cir. 1996) (“[defendant’s] dangerousness is not germane to the inquiry into whether the police may conduct a protective sweep in response to a reasonable suspicion of a threat from some other person inside the home”). Likewise, generalizations about dangers posed by certain types of criminals are insufficient to support a protective sweep. United States v. Moran Vargas, 376 F.3d 112, 115-16 (2nd Cir. 2008) (finding that link between drug courier meetings and motel rooms and between drug traffickers and guns did not provide reasonable suspicion that a dangerous person was hiding in the motel room of suspected drug courier).

The government has placed particular emphasis on the danger this arrest situation posed to the officers. The risk of danger to law enforcement at the arrest scene does not provide reasonable suspicion that a person is lurking inside the residence. Otherwise, Buie would be rendered meaningless because every potentially dangerous arrest would justify a protective sweep. Furthermore, officers’ “perceived vulnerability” does not demonstrate a specific and reasonable belief that other persons are present and pose a danger. United States v. Archibald, 589 F.3d 289, 299-300 (6th Cir. 2009). This is especially true where the danger can be avoided or mitigated. Id. (if inability to see down hallway from inside front door posed danger, prudent course of action would have been to back away, not proceed through the door).

In this case, the deputies testified that they were vulnerable to attack after the arrest as they waited for a patrol car to transport the suspect. According to Buie, a protective sweep should last “no longer than it takes to complete the arrest and depart the premises.” Buie, 494 U.S. at 335. To reduce their vulnerability to attack from inside the house, the deputies could have used their considerable force (six to eight officers armed with side arms and long arms) to provide cover while they loaded Simmons into one of their cars and departed. The evidence established that it was their choice to wait on the premises for a patrol car when they easily could have transported the Defendant from the scene themselves.

http://fourthamendment.com/blog/index.php?blog=1&title=s_d_ala_defendant_closed_door_on_arresti&more=1&c=1&tb=1&pb=1

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

4th Amendment Blog – FL1: Police entry to the yard to peer in home’s windows violated the Fourth Amendment

“Our state and federal constitutions declare that homes—whether castles or cabins, mansions or mobile homes—are protected spaces that require a warrant or other lawful basis to justify a governmental intrusion. At issue in this case is whether police officers entering the property of Russell Powell and Benjamin Wilbourn and peering into a window of their mobile home late at night after receiving an anonymous tip an hour earlier that marijuana plants were inside was a search that violated the Fourth Amendment. Because the officers intruded into a constitutionally protected area without a warrant and peered into a window from a part of the property where they had no lawful right to be, an unconstitutional search occurred.” Powell v. State, 2013 Fla. App. LEXIS 8166 (Fla. 1st DCA May 22, 2013):

It is a different matter when police officers choose to physically enter other portions of a home’s curtilage—areas where they have no right to be. See, e.g., Olivera v. State, 315 So. 2d 487, 488 (Fla. 2d DCA 1975) (leaving walkway and crossing grass to stand next to a window to listen to conversation inside was unreasonable). Even when governmental agents are engaging in otherwise lawful “knock-and-talks,” they can exceed the scope of a reasonable visit to a front door or porch through physical actions that encroach into areas in which the resident has a reasonable expectation of privacy. State v. Adams, 378 So. 2d 72, 74 (Fla. 3d DCA 1979) (standing on a chair on front porch to look down from a window into apartment was unreasonable). Cf. State v. Leonard, 764 So. 2d 663, 664 (Fla. 1st DCA 2000) (stretching to full height and standing on tiptoes on doorsill was reasonable).

Turning to the case at hand, we focus only on whether the officers peering into the window violated the Fourth Amendment. …

We begin with the burden of proof. Because the officers lacked a warrant at the time they looked in the window, the burden rested with the State to justify an exception to the warrant requirement. Hilton v. State, 961 So. 2d 284, 296 (Fla. 2007) (“When a search or seizure is conducted without a warrant, the government bears the burden of demonstrating that the search or seizure was reasonable.”); Kilburn v. State, 54 So.3d 625, 627 (Fla. 1st DCA 2011) (“A warrantless search is per se unreasonable under the Fourth Amendment subject to a few well-defined exceptions. … The State has the burden to prove that an exception to the warrant requirement applies.”) (citation omitted).

To meet its burden, the State presented the testimony of two officers along with the search warrant. Because the trial court made no written findings of fact, “we view the evidence and all reasonable inferences from it in the light most favorable to sustaining the order.” State v. DeLuca, 40 So. 3d 120, 123 (Fla. 1st DCA 2010). Of course, “a suppression order that turns on an issue of law is reviewed by the de novo standard of review.” Ikner v. State, 756 So. 2d 1116, 1118 (Fla. 1st DCA 2000).

Here, our task is made easy because there are no disputed facts: the officers candidly explained what they did and why they did it. No dispute exists that the officers were within the curtilage of the home when they peered into the window; the officers conceded as much in their testimony. To our knowledge, no court has held that an area within arm’s length of a home’s window is anything other than within the curtilage.

The question then becomes whether the officers looking into the window violated either the privacy or intrusion tests. We apply the latter first, it being the more straightforward. Under the intrusion approach, we query whether the police officers physically “occupied private property for the purpose of obtaining information” without express or implied permission to do so, thereby intruding into an area protected by the Fourth Amendment. Jones, 132 S. Ct. at 949. Here, the deputies initially followed established norms: they approached the front door via the pathway, took one step up, and knocked. Receiving no response, a private citizen would have had no choice but to depart immediately via the pathway. Indeed, Deputy Tysall acknowledged that if someone inside the home had told the officers to go away, they would have done so after asking if the occupants were okay.

The deputies, however, deviated from established norms by entering upon that portion of the property directly in front of the window. Nothing in their testimony or the record establishes any license to do that. The officers had to step off the front door step, move two feet to the left, and position themselves directly in front of the window, their faces no more than a foot away. At that point they were virtually within the home without breaking its close. Because they physically entered a part of the curtilage where they had no right to be for the purpose of gaining information, the intrusion test is met.

http://fourthamendment.com/blog/index.php?blog=1&title=fl1_police_entry_to_the_yard_to_peer_in_&more=1&c=1&tb=1&pb=1&utm_source=feedly

Legal Times – In Fourth Circuit, a Spotlight on Warrantless GPS Tracking

In Fourth Circuit, a Spotlight on Warrantless GPS Tracking

There’s no dispute that the traffic stop one morning in May 2009 was legitimate. The driver of a Pontiac Grand Prix failed to use a signal before turning into an exit lane to leave Interstate 95 in South Carolina.

The authorities initiated a traffic stop on the exit ramp that morning near Charleston. The passenger, police would later say, was nervous. His arms and legs were shaking, according to court records.

The stop wasn’t random. Local and federal investigators, working on a drug case, secretly were monitoring the movement of the car via a global positioning device—one that had been attached without a warrant.

The passenger, Naarl Richard, who was returning from a trip to New Jersey, was convicted at trial on heroin charges. While awaiting sentencing, the U.S. Supreme Court ruled in U.S. v. Jones that the warrantless installation of a GPS tracking device amounted to a “search” under the Fourth Amendment. (Defendant Antoine Jones’s conviction and life sentence were thrown out.)

Richard won a new trial based on the Supreme Court decision. The second time around, in the summer of 2012, prosecutors weren’t allowed to use the GPS data to explain how the police ended up finding him—and the drugs. He was convicted anyway. Richard is serving a 21-year prison sentence.

The legal fight is now playing out on appeal. A lawyer for Richard on May 17 asked the U.S. Court of Appeals for the Fourth Circuit to overturn the judgment, arguing that the trial judge should have suppressed the drug evidence because it flowed from the illegal use of the GPS device. The audio from the court hearing is here.

The case is important because, for prosecutors and federal agents, there isn’t much guidance among appellate courts on how to handle challenges of warrantless GPS tracking.

Federal trial judges are divided over when the “good faith” exception to the exclusionary rule—concerning when evidence of an unlawful search can be thrown out—should be in play.

One big issue for the appellate court: Did the traffic stop constitute a new and distinct crime such that it, as Richard’s lawyer said, “purged the taint of the government’s illegal use of a GPS tracking device?”

Richard’s lawyer, G. Wells Dickson Jr. of Charleston, S.C., urged the appeals court to set aside the verdict and grant Richard a new trial—with the drug evidence, 1,000 glassine bags of heroin, excluded. (The authorities found the drugs in a false compartment under the center console of the car in which Richard was a passenger.)

“It was a legal stop, with the driver giving consent to search—none of which would have happened if we hadn’t had the GPS,” Dickson said in the Fourth Circuit. “They wouldn’t have been there.”

In court papers in the appeal, Dickson wrote: “If the government’s logic is accepted, then law enforcement could use any illegal method of their choosing to develop leads on the location of a suspect and then follow that suspect until the individual made some minor mistake such as failing to use a turn signal or failing to yield to a yellow light. This would effectively render our Fourth Amendment protections meaningless.”

Nathan Williams, an assistant U.S. attorney in Charleston, told the appellate panel that the police acted in good faith when they installed and monitored the GPS device. The Grand Prix had been stationary for weeks, save for one trip to a laundry.

“The GPS tracker was applied to do what the officers would ordinarily do—without that technology—to determine when the vehicle was going to leave the area to connect with its source,” Williams said in court.

When investigators saw the car leave the state and reach New Jersey—the source of drugs, according to an informant—they moved into position to make a traffic stop. The stop was a pretext. Investigators didn’t know whether they’d find anything illegal in the car, which was driven by Richard’s girlfriend.

After car returned to South Carolina, the authorities followed it. They pulled it over after the driver failed to signal upon entering an exit lane. “Fairly marginal traffic offense,” Williams said in the appeals court.

Williams argued that the panel judges should find the heroin evidence admissible—despite the illegal search—because the police were not acting outside the scope of their authority.

“They were doing what we would want law enforcement to do,” Williams said. “There was certainly no flagrant misconduct.” Officers were following the rules they best they could, he said.

Williams wrote in court papers: “Detectives acted with an objective, good faith belief that their conduct was lawful.”

The Supreme Court’s decision in Jones last year has sweeping consequences for law enforcement investigators. Williams said that, in cases he was handling, GPS devices were shut down after the high court’s ruling.

Williams didn’t specify the number of cases. “Across the country,” he said, “reliance on the use of GPS… was in good faith.”

The appellate court judges didn’t immediately rule after the hearing.

http://legaltimes.typepad.com/blt/2013/05/in-fourth-circuit-a-spotlight-on-warrantless-gps-tracking.html?utm_source=feedly