The New Justice of the U.S. Supreme Court

Now that Neil Gorsuch has been sworn in, we’ll begin to find out how he wields the law as a member of the highest court in the land.

Some say he’s a natural successor to the Justice whose seat he fills, Antonin Scalia. Here is a profile of Mr. Gorsuch that compares his views to those of Mr. Scalia on matters of criminal law, interstate commerce, and more.

Justice Scalia’s legacy may be complicated, but he defended the rights of the accused in important ways. He championed the right of confrontation, for example. It’s in the Sixth Amendment, and it means that if you’re charged with a crime, your accusers must take the witness stand, testify under penalty of perjury, and face cross-examination in open court. They can’t hide behind hearsay and innuendo. Scalia also championed your right to a trial by jury—that dwindling bastion of freedom and democracy—and he looked after the Fourth Amendment in an age of new technologies.

We hope Justice Gorsuch hews to that heritage and builds on it. Justice Scalia, for example, didn’t care much for the Miranda rule, but we may come to appreciate it more in this century than we did in the last. We may feel differently about the meaning of due process when we see that governments can exercise total dominion over their citizens. We may value legal limits on their power more as we realize that no other limits exist.

To that end, some point optimistically to Gorsuch’s views on overcriminalization, the rule of mens rea, and the rule of lenity.

Others are less sanguine about him in general.

But left, right, or center, most would agree, in the end, with this comment: “We think that all judges should look to the text and history of the Constitution. But [we hope] he will follow all parts of the Constitution, in particular those parts that were added in the 19th and 20th centuries that made our Constitution more equal, more just, more free and pushed us further down an arc of progress.”

Can They Search My Phone at the Border?

Suppose you go to visit your aunt in Italy, and you take your phone and tablet with you.

When you come back through customs, can they just search your devices willy nilly?

Probably. Here’s a good overview of your rights at the border, along with some practical considerations. It’s worth reading ahead of time because the government is stepping up its enforcement at points of entry, and there have been some heavy-handed run-ins lately between agents and travelers, including U.S. citizens.

The general rule is that customs and border agents may conduct routine, reasonable searches of you and your belongings, including your electronic devices, for any reason or no reason at all. They don’t need a warrant, and they don’t need any basis to believe they’ll find evidence of a crime. It’s known as the Fourth Amendment’s border-search exception.

But how far can they go?

Can they conduct full, forensic searches or force you to give up your passwords?

According to this 2009 policy memo, the answer is yes. It says agents can seize your device, copy its contents, and search them. To do so, they can hold a device for up to five days with a supervisor’s approval. For longer periods, they must get further approval at higher levels. Ordinarily, they must conduct the search in the presence of a supervisor, too, but if that’s not feasible, they must inform a supervisor about their search as soon as possible. If they find probable cause to believe your phone contains evidence of a crime, you may not get it back for a while, if at all. If they don’t, you should get your phone back eventually, and they’re supposed to destroy any copied information.

The law is evolving, however, to require at least a reasonable suspicion for a full forensic search. That’s already the case in the federal circuit that covers California and eight other states, and the law should continue to trend in that direction. What is a reasonable suspicion? It’s a particularized and objective basis for suspecting someone of a crime.

Still, reasonable suspicion is not a tough legal standard to meet.

Plus, agents can always just ask you to unlock your phone or give up your passwords, and if you refuse, they have plenty of ways to coerce you. They can take your phone; detain you, too; search your bags more thoroughly; deny you entry if you’re visiting; or scrutinize your green-card status. Most folks just want to be on their way.

So happy trails, traveler. Leave the phone, perhaps, but take the cannoli.

The Right of Refusal in California DUI Cases

If you’re arrested for driving under the influence, and you’re asked to submit to a breath or blood test, remember that you still have a third choice.

You can refuse to submit to such testing and face the consequences. What are those?

  • You may lose your license for one-to-three years depending on your driving history;
  • You’ll have to pay a fine;
  • You’ll serve mandatory jail time if you’re convicted; and
  • Your refusal can be used against you at trial as evidence of your guilt.

You may not like your options, but you’ve still got a right to refuse, and if a police officer wants to deprive you of that right, he or she must get a warrant.

Take this recent case, for example. A woman was stopped on suspicion of driving under the influence. The police officer asked her to blow into a breathalyzer, saying it was optional (which is true). She declined. He then arrested her and asked her to choose between a breath and blood test. He told her that she was required to choose one or the other, but he didn’t explain the consequences of refusing like he was supposed to. That made it seem like she couldn’t refuse (which isn’t true). So she chose the blood test. After she got charged, she moved to suppress the results on the ground that her consent wasn’t free and voluntary because the officer made it seem like she couldn’t refuse. But the trial court denied it.

On appeal, the court ruled that the trial court should have suppressed the test results. Because the officer didn’t have a warrant, the search and seizure was illegal unless it was based on an exception to the warrant requirement (like consent). In this case, however, the woman’s consent wasn’t free and voluntary because the officer didn’t correctly explain the law. He told her that she had to take a test under California’s implied-consent law (which is true). But he didn’t advise her of the consequences for refusing. That made it seem like she couldn’t say no, which meant there was no actual consent.

As the court explained, it’s no different than if the police came to your home and claimed to have a warrant but then argued that you consented to their search by opening your door. That’s not a valid consent because you had no right to resist their authority, anyway. So if it turns out they didn’t actually have a warrant then their whole search would be illegal, and they couldn’t rescue their case by relying on your consent.

The Future of Face-Recognition Technology

Face it: the future is already here. And by default, your face is ever more likely to be found in a law-enforcement database. It’s as easy as getting a driver’s license.

The facts are that face recognition is neither new nor rare, and more than one out of two American adults have already been loaded into a local, state, or federal database.

That’s according to this report by the Center on Privacy and Technology at the Georgetown University Law Center. Read it to learn more about this technology; how it’s being used; and what the future holds. For three shorter stories about it, see here, here, and here.

What did the researchers do? They sent public-records requests to more than one hundred law-enforcement agencies across the country. They interviewed representatives from dozens of those agencies as well as from the technology companies they contract with. They made two site visits to agencies that use advanced face-recognition systems. And they surveyed the state of the law (or lack thereof) in all fifty states.

What are their takeaways? Here are four.

  1. The technology has value, and its use is inevitable. The report doesn’t aim to stop it.
  2. Its use is spreading rapidly and secretly without limits, standards, or public oversight.
  3. The total network of federal, state, and local databases includes over 117 million American adults. That’s more than half the country.
  4. We’re moving toward a world of continuous, real-time face recognition through public surveillance cameras.

What are their recommendations? Here are three.

  1. Congress and state legislatures should pass commonsense laws to regulate face recognition, and police should follow them before they run a search.
    • For example, to search a database of driver’s license or state identification photos, police should have a warrant backed by probable cause.
    • To search a database of mug shots, they should have a reasonable suspicion of criminal conduct. Periodically, they should scrub the database of people who were arrested but not charged and convicted. Michigan, for one, already requires that.
    • They should not use real-time, continuous surveillance except for public emergencies.
    • They should not track people based on politics, religion, or other protected status.
  2. The federal government should develop tests and best practices to improve the technology’s accuracy. For example, in the latest available test of the FBI’s database, the system included the right person on a list of fifty potential matches 86% of the time. That means that one out of seven searches returned a list of fifty innocent look-alikes, and the other six included 49 of them.
  3. All governments should report their use of the technology, audit such use regularly, and respect civil rights and liberties.

You Won’t Ever Die From Boredom In a Police Raid

That’s the nice thing about it.

But the same can’t be said for being rash or reckless, which is how some police departments are prone to execute their warrants. They may use SWAT teams as a default option for every search or arrest, and they may go in like gangbusters if they do.

When they do, everyone makes more mistakes, and everyone pays a price. They may hit the wrong address and terrorize an innocent family. Or they may hit the right address but kill someone for no good reason.

Here’s an alternative then.

It comes from this essay by a veteran police officer who served sixteen years on a SWAT team. You could say he’s served a lot of warrants.

His very first search was all smash and grab, and it gave him a rush.

But over time, he says, his team gravitated toward a different default: surround the place and call people out. They realized it worked better. Everyone made better decisions.

What are the downsides? Fewer adrenaline rushes. Fewer cool stories for friends and family. More evidence or contraband flushed down a toilet.

The upsides? Lower risks of harm for everyone. More compliance from people on the receiving end. More people on all sides going home to their families at the end of the day.

Police raids still have their place, the author says. Sometimes, it just isn’t safe for cops to stand around and wait. Or they may be hitting multiple locations at the same time. Or they may lose valuable evidence if they don’t go in fast.

Other times, though, they go in hard and fast to save money on overtime pay or to avoid rush hour later that day, and those aren’t good reasons.

So here’s to slower, safer, smarter law enforcement. May boredom reign.

Every Man’s Evidence, Everywhere

They say the public has a right to every man’s evidence, but in a world full of digital evidence, what if it’s stored on servers in other countries?

We wrote about this case two summers ago. Back then, the Microsoft Corporation had just defied a federal search warrant that demanded a subscriber’s emails (and other data) as part of a criminal investigation. Microsoft had already produced all of the data that it stored on servers in the United States, but it refused to access and turn over the emails because they were stored in the Republic of Ireland. Instead, the company moved to quash the warrant, which the magistrate denied, and it was appealing that denial to the district court when we last wrote about it. As it happened, the district judge agreed with the magistrate and held the company in contempt of court for not obeying the warrant.

Well, three weeks ago, Microsoft won big in the court of appeals. In a unanimous decision, the court ruled that the warrant couldn’t be enforced against the emails because the federal law in question—the Stored Communications Act—did not authorize warrants to reach beyond the territorial jurisdiction of the United States. Courts must presume that a law applies only within the United States unless Congress clearly says otherwise, and it hadn’t done so here. One judge wrote separately to explain why it was a closer case and to urge Congress to update the Stored Communications Act for the 21st century.

For now, the decision binds federal courts in New York, Vermont, and Connecticut.

“The Fourth Amendment … Is In Retreat”

That’s how a dissenting opinion ends in a major federal case that was decided on Tuesday. This is how it begins:

“A customer buys a cell phone. She turns it on and puts it in her pocket.”

And with that, according to the majority’s opinion, the customer has consented to create a record of everywhere she goes, a record which the government can then obtain without a search warrant based on probable cause.

Neat trick, huh?

If the government wanted to plant a tracking device on you to follow you everywhere you went, it would need a warrant, but if it wants to let your cell phone do the work, it doesn’t.

Instead, under a federal law from 1986, it can apply for a special order to get your phone’s cell-site location data. These are the logs of cell towers that your phone connects to as you go about your business. They create a fairly precise record of where your phone goes.

The special order must be approved by a judge, but the government doesn’t have to show probable cause to believe you committed a crime; it only needs to show reasonable grounds to believe that your travels are “relevant and material to an ongoing criminal investigation.” Off the top of my head, I can’t think of a case where the government couldn’t argue your travels were important once it decided to investigate you for something.

In this case, the government obtained seven months’ worth of records this way.

On appeal, the court not only denied that the Fourth Amendment required a search warrant backed by probable cause, but it denied that the Fourth Amendment applied at all because, supposedly, you have no reasonable expectation of privacy in data that you share (or that your phone shares) with a third party such as your cellular service provider.

The court didn’t explain how people are supposed to work, date, or otherwise live in the real world without doing so.

As we’ve noted before, this third-party doctrine makes no sense in the digital age.

Fortunately, many states, including California, are going the other way.

The Price of Freedom is Eternal Vigilance

Antonin Scalia didn’t coin that expression, but the late Supreme Court Justice, who died one month ago, once delivered a speech that touched on a similarly uncomfortable notion.

Nearly two years to the day before his death, Scalia was speaking to a group of law students at the University of Hawaii, and he was asked about the Supreme Court’s infamous Korematsu decision from 1944. That’s the case in which the Court approved, by a 6-3 vote, the constitutionality of an executive order that forced the internment of all persons of Japanese descent, including American citizens.

Although Scalia unequivocally called the Court’s decision wrong, he also imparted the following admonition to his audience: “But you are kidding yourself if you think the same thing will not happen again.”

To explain himself, he referred to an older, Latin expression: “Inter arma enim silent leges … In times of war, the laws fall silent.”

And he went on to say, “That’s what was going on—the panic about the war and the invasion of the Pacific and whatnot. That’s what happens. It was wrong, but I would not be surprised to see it happen again—in time of war. It’s no justification but it is the reality.”

I wouldn’t be surprised, either, and I hope I’m wrong about that, but we’d be wrong to presume that it will never happen again because we’re so much better than we were or because we’ve evolved beyond our basic fears and instincts.

Sometimes, in fact, it seems we scare more easily than ever.

Whether or not you agree with Scalia on other points—and there’s plenty of grist for debate—the foregoing remarks reminded me that the price of freedom—and a better tomorrow—is eternal vigilance by this generation and every one to follow.

New California Criminal Laws: Part Deux

To conclude our two-part series on the state’s new criminal laws, here are three more important ones that went into effect on January 1, 2016.

Both prosecutors and defense attorneys must account for the immigration consequences of a plea deal. This is Assembly Bill 1343. It amended the Penal Code to reflect that defense lawyers must advise noncitizens accurately about the immigration consequences of a proposed guilty plea, and they must ethically defend against such consequences to the extent they can. This is not new, but the statute confirms state and federal case law to that effect. What is new, however, is that prosecutors must also consider such immigration consequences as a factor in their plea-bargaining efforts to reach a just outcome. See Pen. Code §§ 1016.2 & 1016.3.

It’s not a felony to transport marijuana, phencyclidine, or mushrooms unless you’re doing it for sale. This is Assembly Bill 730. It amended the Health and Safety Code to bring the treatment of these drugs in line with that of cocaine, heroin, and others. Two years ago, the state amended its drug-trafficking laws to preclude felony charges for just transporting most drugs unless you were actually trafficking, too—that is, transporting for sale; but the bill left out marijuana, phencyclidine, and psilocybin mushrooms. This bill fixes that. See Health & Safety Code §§ 11360, 11379.5, & 11391.

The police (but not your neighbor) may continue to use pen registers and trap-and-trace devices to investigate you. This is Assembly Bill 929. It amended the Penal Code to provide for police to apply for pen registers and trap-and-trace devices. What are these? Well, pen registers capture and record all the numbers of the phones or devices that you call or send messages to (but not the content of your communications), while trap-and-trace devices capture and record all the numbers of the phones or devices that call or send messages to you (but not the content). They’re often used in tandem, and they’ve been authorized by case law for a long time, but no California statute codified their use until now.

To use them, the police must apply for a court order, certify that the information is relevant to an ongoing criminal investigation, and show probable cause to believe the information will lead to evidence of the crime. If granted, the court order is good for sixty days, and it may be renewed for another sixty days. But if someone installs or uses such devices without a court order, it’s a crime. It may be charged as a felony or a misdemeanor, and it’s punishable by a fine of up to $2,500, imprisonment in the county jail for up to three years, or both. See Pen. Code §§ 638.50, 638.51, 638.52, & 638.53.

New California Criminal Laws in 2016

Happy New Year! And with it, here are five important criminal laws that went into effect.

Courts must report prosecutors for bad-faith Brady violations. This is Assembly Bill 1328. It amends the Penal Code to provide that a court must report a prosecutor to the State Bar who it finds, by clear and convincing evidence, has deliberately withheld exculpatory evidence in bad faith, and the violation either contributed to your conviction or seriously hindered your ability to defend yourself. The court may also disqualify the prosecutor from the case, and if it does, the defense may move to disqualify the prosecutor’s entire office if there is enough evidence that other employees shared in the bad faith as part of a pattern and practice. See Pen. Code § 1424.5; Bus. & Prof. Code § 6068.7(a)(5).

The police must get a new type of warrant to search your electronic data. This is Senate Bill 178. It amends the Penal Code to require a special court order before a government agent or entity can search your data in electronic devices or the cloud, including your emails, text messages, and location data. There is an exception if the government believes in good faith that it needs the data to address a life-threatening emergency, but even then, the government must apply for a warrant within three days. Other rules require it to seal, retain, or destroy your data depending on what it finds and to notify you of what it’s doing. If the government doesn’t follow these rules, you can move to exclude the evidence it obtained as a result. See Pen. Code §§ 1546, 1546.1, 1546.2 & 1546.4.

The public has a right to record the police. This is Senate Bill 411. It amends the Penal Code to confirm that you can’t be stopped for or charged with resisting or obstructing a police officer (or public official) if the officer or official is in a public place or if you have a right to be there. See Pen. Code §§ 69(b) & 148(g).

Grand juries will no longer investigate or indict cases involving police shootings or the use of deadly force. This is Senate Bill 227. It amends the Penal Code to bar grand juries from indicting or inquiring into cases involving a police officer’s use of force that led to the death of someone he or she had detained or arrested. See Pen. Code §§ 917(b) & 919(c).

The state will collect and maintain more comprehensive data on police stops and profiling. This is Assembly Bill 953. It amends the Government Code to require that state and local law-enforcement agencies collect data on every police stop and report their data annually. The data must include the time, date, and location of the stop as well as the reason for it, what happened next, and the end result. The law also expands the definition of police profiling beyond race to include gender, religion, national origin, and sexual orientation. The largest agencies have until April 2019 to issue their first report while the smallest agencies have until April 2023, and those in the middle have until 2020 or 2022 depending on their size. See Gov’t Code § 12525.5; Pen. Code §§ 13012(a)(5) & 13519.4.

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