CRJ 1010 Lecture Transcript PDF

SPEAKER 0 Greetings everyone. This week we are going to be discussing police and law. Today I'm going to start discussing police in the law specifically, uh, privacy expectations. And we're going to cover these four, um, Supreme Court cases as well as some information pertaining to, to privacy, um,...

SPEAKER 0 Greetings everyone. This week we are going to be discussing police and law. Today I'm going to start discussing police in the law specifically, uh, privacy expectations. And we're going to cover these four, um, Supreme Court cases as well as some information pertaining to, to privacy, um, issues. So, as you recall, you know, procedural law kind of lays the foundation for how criminal justice actors are supposed to carry out their mandate. Right? So with police specifically, right, there are, um, laws that govern how they carry out their job. Uh, many of them are set through the Bill of rights, which we covered, uh, a couple of weeks ago. And Supreme Court precedents, um, set by court cases that have gone before the United States Supreme Court. And so and again, it's important to understand that just because someone should do something doesn't mean that they always do. And that's why we have courts to interpret whether behavior was, um, constitutional or otherwise. So, you know, privacy is really important. As we previously discussed, Americans place a premium premium on privacy. And if you recall, the Fourth Amendment prohibits unreasonable searches and seizures. As citizens, we are offered a reasonable expectation of privacy in certain locations, and authorities are able to violate that expectation, provide they possess legal authority to do so. As noted in the text, reasonable expectation of privacy is an objective standard developed by the courts for determining whether a government intrusion into an individual's person or property constitutes a search because it interferes with their interests that are normally protected from government examination. There is a long case history detailing the courts views on what constitutes a reasonable expectation of privacy. Initially, it was thought that the Fourth Amendment solely protected property. That view began to shift in the 1960s when the courts started expressing the principle object of the Fourth Amendment is the protection of privacy rather than property itself. In 1967, in Katz v United States, the court stated what a personally knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection, but what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. Thus, the ability to claim the protection of the amendment depends not solely upon a property right in the invaded place, but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion. It is not solely because I own my house that I enjoy the freedom from government intrusion in that space. Rather, inside my home, I have a reasonable expectation of privacy. In 2001, in Cairo versus the United States, the court invalidated the warrantless use of a thermal imaging device directed at a private home from a public street. So now the court saying the expectation of privacy can be violated without breaching a physical structure physically, to limit police use of technology that can shrink the realm of guaranteed privacy, the court stated that obtaining by sense enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search. Protecting privacy in the home is at the apex of the Fourth Amendment coverage, because of the right associated with ownership to exclude others. I do not have to let anyone into my house because it is my private space. But ownership of other things, such as automobiles, does not carry a similarly high degree of protection. The court usually considers whether a person has taken normal precautions to maintain privacy, that is, precautions customarily taken by those seeking to exclude others. This is a significant determining factor when determining the legitimacy of the expectation of privacy. The court has also held that a person has no legitimate expectation of privacy in information he voluntarily provides to third parties. It is important to acknowledge that there is a delicate balance balancing act going on between Wayne law enforcement investigative needs against privacy interests of the public. This led the court to apply a two tier sliding scale of privacy interests first, determine whether the Fourth Amendment protected an interest. Second, determine if a warrant was or is required. If so, then ordinarily a warrant is required and the scope of the search is strictly tied to and justified by the circumstances which rendered its initiation possible. But the courts have also acknowledged exceptions exceptions to the warrant requirement over time, whereby a protected interest can be searched without a warrant. So think about airport security. Our bags are being searched, scanned, although electronically, every time we go through airport security. All of this is to say that what is considered a reasonable expectation of privacy might not always be so clear cut. And as we advance technologically as a society, the line blurs and the courts need to interpret how expectations of privacy apply. This map was created from cell phone data that was released in 2020 by a company who was tracking how spring breakers in Florida moved about the country after their holiday was over, potentially spreading the Covid 19 virus in the US. The government did not use these data, at least publicly. We're told to identify individuals movement. But as noted in the text, several other countries use cell phones to track quarantine compliance and trace person to person contacts. As we will see momentarily, the United States Supreme Court has grappled with the issue of privacy surrounding cell phones. Before we discuss that case, we're going to cover a few others that dealt with the issue of privacy in other situations. In September 2014, Pennsylvania state troopers pulled over a car driven by petitioner Terrence Byrd. Natasha Reid rented a car in new Jersey while Terrence waited outside the rental facility. Her signed agreement warned that permitting an unauthorized driver to drive the car would violate the agreement. Read listed no additional drivers on the form, but she gave the keys to Byrd upon leaving the building. Byrd was pulled over for allegedly violating a state law requiring drivers to use the left lane for passing, only recognizing the car as a rental. The officers asked Byrd for his license and rental agreement, which he had difficulty locating. Once he did locate them, the officers noted that the rental agreement did not list Byrd as an authorized driver, and when they ran his identification, they noted that he was using an alias and had an outstanding warrant in new Jersey. At the time of the stop, Byrd was the only person in the car because he was not listed on the rental agreement. The troopers told Byrd they did not need his consent to search the car, including its trunk, where he had stored personal belongings. A search of the trunk, uncovered body armor and 49 bricks of heroin. The evidence was turned over to the federal authorities, who charged with possession of heroin with the intent to distribute and possession of body armor by a prohibited person. At trial, Byrd's defense moved to suppress the evidence as the fruit of an unlawful search. The United States District Court for the Middle District of Pennsylvania denied the motion and allowed the evidence to be admitted, which led to a conviction. Byrd's defense filed an appeal, which was heard by the Court of Appeals for the Third Circuit. The Third Circuit affirmed the district court's ruling, meaning they too believe the evidence was admissible. Both courts concluded that because Byrd was not listed on the rental agreement, he lacked a reasonable expectation of privacy. Bird's defense then filed an appeal to the United States Supreme Court, which chose to hear his case. The question before the court was, does a driver have a reasonable expectation of privacy in a rental car when he has the renter's permission to drive the car, but is not listed on an authorized listed as an authorized driver on the rental agreement. In a unanimous decision authored by Justice Anthony Kennedy, the court held that a driver of a rental car who possesses the renter's permission to drive, but is not listed as an authorized driver on the rental agreement, does have a reasonable expectation of privacy against government searches of the vehicle. A driver who has permission of lawful possessor or owner of the car, has complete dominion and control over the property and can rightfully exclude others from it, according to the court. The court cited the situation in Jones v United States that was heard in 1960, where the court found that the defendant had a reasonable expectation of privacy in the apartment in which he was staying temporarily with the owner's permission, notwithstanding the fact that the apartment was not lawfully his. Essential to the court's holding was the finding that the driver in this case was in lawful possession. Indeed, the driver of a stolen vehicle lacks a reasonable expectation of privacy in a car he may be driving. So because the renter who signed the agreement gave permission, they extended that expectation of privacy to Mr. Bird. However, had he stolen the car, right, that changes the dynamic of the situation whereby he would have no reasonable expectation of privacy in that vehicle. Another case dealing with the Fourth Amendment comes from Coolidge v New Hampshire in 1971. Edward Coolidge was accused of a particularly brutal, brutal murder of a 14 year old girl in New Hampshire. Police went to his home on January 28th, 1964, to question him about a murder in the course of their inquiry. He showed them three guns, and he agreed to take a lie detector test, which produced inconclusive results on whether he committed the murder. But he did admit to committing a theft. In petitioner's absence, two other policemen came to the House and questioned petitioner's wife to check petitioner's story and corroborate his admission of the theft. Unaware of the visit of the other officers who had been shown the guns, and knowing little about the murder weapon, the police asked about any guns there might be in the house and were shown for by the petitioner's wife, which she offered to let them take. After one policeman first declined the offer, they took the guns along with various articles of petitioner's clothing his wife made available to them. On February 19th, petitioner was arrested in his house for the murder, and on that date, a warrant to search petitioner's automobile was applied for by police chief and issued by the Attorney General. Importantly, the Attorney General had assumed charge of the investigation. It was later the chief prosecutor at trial. And this is an important point. The car, which at the time of the arrest was parked in the petitioner's driveway, was subsequently towed to the police station, where on February 24th and on two occasions the next year, it was searched vacuum sweepings from the car as well as from the clothing were used as evidence at trial, along with one of the guns made available by the petitioner's wife. Coolidge was convicted by the trial court in New Hampshire, and upon appeal, the state Supreme Court affirmed. His defense, then appealed to the United States Supreme Court, which agreed to hear the case. The question before the court was whether the searches and seizures pardon me, whether the searches of the defendant's home and automobile violated the Fourth Amendment. In A54 ruling, the court said that the warrant for the search and seizure of Coolidge's automobile did not satisfy the requirements of the Fourth Amendment because it was not issued by a neutral and detached magistrate. Remember, the person who signed off on the warrant was the same person in charge of the investigation, so there was a conflict of interest. The court also noted the basic constitutional rule is that searches conducted outside the judicial process without prior approval by judge or magistrate are per se. Unreasonable under the Fourth Amendment, subject only to a few specifically established and well defined exceptions which were not applicable to this case. With regard to the police visiting in his home to interview his wife, the court said no search and seizure were implicated when the police obtained the guns and clothing from the petitioner's wife, and hence they needed no warrant. The police, who exerted no effort to coerce the police, exerted no effort to coerce or dominate her, were not obligated to refuse her offer to let them take the guns. And in making these and other available items available to the police, she was not acting as an instrument or agent of the police. This case also dealt with the Plainview doctrine. The court noted under certain circumstances, the police may, without a warrant, seize evidence in plain view, though not for that reason alone, and only when the discovery of the evidence is inadvertent. That exception is inapplicable to the facts of the instant case, where the police had ample opportunity to obtain a valid warrant new, and advance the car's description and location intended to seize it when they entered on the petitioner's property, and no contraband or dangerous objects were found. The Plainview doctrine was refined some years later when the Supreme Court heard Horton v California in 1990. In this case, a California policeman determined that there was probable cause to search Petitioner Horton's home for proceeds of a robbery and the robbers weapon. His search warrant affidavit referred to police reports that described both the weapons and proceeds, but the warrant issued by the magistrate only authorized a search for the proceeds. Upon executing the warrant, the officer did not find any stolen property, but did find weapons in plain view and seize them. The trial court refused to suppress the seized evidence, and Horton was convicted of armed robbery. The California Court of Appeals affirmed. The California Supreme Court denied the petitioner's request for review, but the United States Supreme Court agreed to hear Horton's case. The issue before the court was whether the Fourth Amendment prohibits the warrantless seizure of evidence in plain sight, if the discovery of such evidence was not inadvertent. In a 7 to 2 majority, the court held that the seizure of evidence in plain view does not constitute the invasion of privacy that the Fourth Amendment is meant to prohibit. Once an officer has a warrant to search a suspect's house, that officer may seize any obviously incriminating evidence that the officer finds in plain view. The court also held that the inadvertent limiting limitation does not limit the scope of the search further than the warrant itself does in this case, since the warrant was specifically for stolen property, the officer had to limit his search to the likely places where property might be kept, since the officer had probable cause to believe that certain types of weapons were used in the commission of the crime, he could legally seize the weapons if they were found in the course of that search. In this case, the court refined the Plainview doctrine and laid out three conditions which must be satisfied in order to uphold a seizure. Under the Plainview Doctrine, first item must be in plain view of the officer. Second, the officer must lawfully be in the place where he discovered the evidence. And third, the incriminating nature of the evidence must be immediately apparent. So if an officer has a legal right to be somewhere and sees something that is clearly indicative of criminality in plain view, he or she can legally seize evidence without a warrant. The rationale is that if we make the officer go back and file a warrant, said incriminating evidence might not be there when he or she returns with the warrant. Here's another case from 2018 where the Supreme Court further clarified the boundaries of warrantless searches. In April 2011, police arrested four men in connection with a series of armed robberies at Detroit area stores. One confessed that the group had robbed nine stores in Michigan and Ohio in 2010 and 2011, supported by a shifting collection of 15 drivers and lookouts. He gave the FBI the cell phone numbers of other participants. The FBI used this information to apply for three orders to magistrate judges to obtain transactional records for each of the phone numbers, which the judges granted under the Stored Communications Act. That act provides the government may disclose certain telecommunication records when specific and articulable facts show that there are reasonable grounds to believe that the contents of a wire, or electronic communication, or the records or other information sought, are relevant and material to an ongoing investigation. Transactional records obtained by the government included the date and time of calls, and the approximate location where the calls began and ended, based on their connections to cell towers. Based on the cell site evidence, the government charged Timothy Carpenter with, among other offenses, aiding and abetting robbery that affected interstate commerce. Carpenter moved to suppress the government cell site evidence on Fourth Amendment grounds, arguing that the FBI needed a warrantless, pardon me, a warrant based on probable cause to obtain the records. The case was initially heard in the US District Court in the Eastern District of Michigan in downtown Detroit. The district court denied the motion to suppress, and the Sixth Circuit affirmed that decision. Carpenter appealed to the US Supreme Court and the court agreed to hear his case. So the question before the court was, does the warrantless search and seizure of cell phone records, which include the location and movements of cell phone users, violate the Fourth Amendment? In A54 ruling, the court said the government's warrantless acquisition of Carpenter cell site records violated his Fourth Amendment right against unreasonable searches and seizures. The majority first acknowledged that the Fourth Amendment protects not only property interests, but also reasonable expectations of privacy. Expectations of privacy in this age of digital data do not fit neatly into existing precedents, but tracking persons movements and locations through extensive cell site records is far more intrusive than the precedents might have anticipated. The court declined to extend the third party doctrine doctrine where information disclosed to a third party carries no reasonable expectation of privacy. They did not extend this to the cell phone. Cell site location information which implicates even greater privacy concerns than GPS tracking does. The third party doctrine applies to voluntary exposure, and while a user might abstractly be abstractly aware that his cell phone provides, providers keep logs, it happens without any affirmative act on the user's part. Thus, the court held narrowly that the government generally will need a warrant to access cell site location information. And so here we see again the court further clarifying, um, situations in which warrantless searches, um, are either constitutional or not. Issues surrounding, uh, privacy and disrupting police investigation is nothing new. And perhaps you'll remember in 2015, when it became somewhat of a national issue when the FBI requested Apple to crack the iPhone of the shooter in San Bernardino, California. So if you recall, there was a mass shooting and the perpetrator, uh, was killed during during the the shootout and they found his phone and the FBI could not unlock it. And they asked Apple if they would help, and Apple declined. Well, as it turns out, the FBI was able to find help with cracking the shooter's phone from a very small firm, um, in Australia that was co-founded by a hacker. And so this company helped the FBI unlock the shooter's phone. But interestingly, Apple sued that company, um, for helping unlock the phone again. So we can kind of glean from this that privacy issues are, um, important not just to, um, protect the individual, but also companies, uh, feel very strongly about privacy and that Apple was willing to, um, decline to help the FBI crack into the phone of someone who committed a horrific crime and even went as far as to sue the company that had helped break into this phone. Um, another example, um, of recent uh, data related privacy issues comes from Google. So in 2023, Google received a record 60,472 search warrants in the United States. And to manage the thousands of search warrants it receives each year, Google created formulas for dealing with common requests for geofence search warrants. It follows a three step process. The company first shares a list of all devices found to be present at the time of the crime, stripping away information it believes could be used to identify users. Second, law enforcement can request more detailed information from a subset of the first group. Finally, in step three, Google provides the names and email addresses that officials have determined are relevant to the investigation. The company generally follows a similar process for keyword searches. Um, pardon me, keyword search warrants, which will, uh, we will see can also come into play when identifying suspects. And so what's happening here is our cell phones track are if we have a smartphone track um pretty much everywhere we go. And law enforcement knowing this, uh, uses Google as a way to determine individuals who might have been within a geofence area at a particular time to narrow down, uh, suspects. So here's an example of these Google uh, data being used for investigative purposes. So there was a purse stolen from a parking lot in Scottsdale, Arizona. And the, um, police had an idea of, you know, when the suspect arrived, and then when the suspect discovered the purse was stolen and they used the location of the car and the timestamp of when the victim said that she arrived and discovered it to narrow down individuals who were in that area next. Um, they knew that, uh, the victim had certain items in her purse, and, um, they they knew that the victim had money, um, transferred from her cash app, and they were able to get a timestamp on when that occurred in geo fenced off to narrow down individuals that were, um, in that area as well. And then finally A credit card from the purse was used at a gas station in Phoenix, and so they obviously knew the time that the credit card was used, where the credit card was used, and they quarantined off geo fenced off an area to identify, um, cell phone, uh, records that were in that time in that area during that time. And so what they were able to do is identify potential suspects by looking across, um, those three different, um, geo fenced areas to look for, uh, common cell phone numbers that were in all three of those areas at those given times. One of the most controversial court battles over these types of warrants is taking place in Colorado. The case involved revolves around the killing of a family of five and a fire at their home in 2020. Footage captured by a security camera showed three people in masks sprinting across the yard right before the house went up in flames. It was among the only clues detectives had to work with. Police in Denver obtained almost two dozen warrants that failed to generate any leads, including a pair of geofence orders. So a detective on the case tried something he had never done before. He secured a court order for information about anyone who googled the address of the home over a two week period leading up to the blaze. The detective zeroed in on five accounts in Colorado in particular three that had searched for the address multiple times. Police traced the account back to three teens who were arrested for murder. One of the kids told the police he set the house on fire because he thought the residents had stolen his iPhone, says a spokesman for the Denver district attorney. And investigators found one of the teens because he googled the home's address 14 times the in the days leading up to the fire. More than three years after the fire, one of the teens has pled guilty, but the other two are still fighting. Seymour argues that the keyword warrant which broke open the case constituted an illegal search, and that all evidence stemming from it should be suppressed. His motion, which was which is pending before the Colorado Supreme Court, is the first challenge to the constitutionality of this technique. The keyword search warrant is profoundly different from traditional search warrants seeking data that belonged to a suspect, the defense argued in the court filing. Instead, the process operates in reverse. Search everyone first and identify suspects later. Lawyers for the arson case defendant maintained that Google must search billions of users to respond to search warrants, raising privacy implications far beyond Colorado. Colorado's top court is expected to rule before the end of the year. In the meantime, law enforcement is finding new ways to mine the digital data trail we leave behind. Police in San Francisco and Phoenix area have already begun sending warrants for video footage recorded by self-driving cars as they roam the city streets, and so we can see that technology just continues to influence criminal justice processing. And these issues are really complicated. Pardon me. These technologies are really complicated by existing privacy expectations and laws. And these laws are going to have to, um, you know, be reconsidered, um, by state supreme courts, appellate courts, the United States Supreme Court, to determine just how far Police are allowed to go in investigating certain types of data without, um, proper notification to the individuals that they're investigating. And so I want you to ponder these questions. If we were in a formal classroom setting, we would we would, uh, probably have a nice discussion. But, you know, should law enforcement officials be able to freely access cell phone tracking data? Right. Is that something that we think should be allowed? Should technology companies be required to fully cooperate with law enforcement officials requests for assistance? Right. Should companies have to provide these data and times when police are investigating, uh, serious criminality? Um, I think want you to think about the two most serious risks to society. If law enforcement officials continue to face current limitations on their access to cell phone tracking data. Are there implications that, um, impede police ability to effectively, uh, investigate crimes? And then do you think that those risks outweigh the public's reasonable expectation of privacy concerning cell phone surveillance? And I think thinking about these questions, um, just really illustrates kind of the gravity and the complexity that the courts are expected to to deal with. Right. These are not simplistic questions. Uh, they can go horribly awry either way. Meaning if there's too much, um, too many parameters around allowing police or not enough. Right. It's it could be a slippery slope either way. But I think it's important for, for us to think about these implications, um, in a meaningful way to understand kind of what the judiciary, uh, is dealing with when they hear cases such as these.