Two Sneak Peeks Inside a Grand Jury

It’s not every day that grand jurors write about their experiences, but here are two who did. Both recently served on grand juries in New York, and they offer competing takes on this corner of our justice system.

The first juror emerged from the experience with an awareness of the power of prosecutors, who dominate the process.

The second emerged with an appreciation for a grand jury’s role in checking that power.

But how independent are grand juries, really? Do they always vote to indict? Are they encouraged to do so? Expected, even? Pressured? Are they more than a rubber stamp?

Read on for some answers from two former grand jurors.

“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.

SCOTUS Stands Up for the Sixth Amendment

We’ve asked this question before. What if the government charged you with a crime, and you wanted to defend yourself but couldn’t—not because you didn’t have any money, but because the government had blocked all access to it?

Twenty-five years ago, the U.S. Supreme Court said the government can freeze your money before trial if there’s probable cause to believe the money’s traceable to the alleged crime, even if you have no other funds for legal fees.

Tough cookies if the government can drive trucks through a hole the size of probable cause. That’s your problem; the presumption of innocence be damned.

But last month, the Court was called on to decide whether the government could take the extra step of freezing assets that you need to fund a defense even if they’re not traceable to the alleged crime.

This time, the answer was no. Here’s how it went down.

The government had accused the defendant of a $45 million Medicare fraud, but when she was indicted, she had a mere $2 million to her name, which (the government agreed) included clean funds unrelated to the alleged fraud. The defendant wanted to use some of that money to pay for her defense.

Even so, the government moved for an order freezing all of it, and the court granted it. The government argued that the forfeiture statute authorized a freeze of both property traceable to the alleged crime and “property of equivalent value.” The defendant countered that, for God’s sake, she had a constitutional right to use her own money to fund a defense. The court, however, concluded that there was “no Sixth Amendment right to use untainted, substitute assets to hire counsel.”

The trial court’s order was affirmed on appeal, but the Supreme Court reversed, ruling that the government violated the defendant’s right to counsel when it restrained her legitimate, untainted assets in a way that deprived her of the ability to retain her counsel of choice.

Otherwise, the Court noted, the government could effectively prevent people from hiring private lawyers and law firms to defend them.

Then everyone would have to rely on a public-defense system that included “overworked and underpaid public defenders.”

Imagine that.

Cyber Search Warrants Are Going to the Dogs

It’s true, and reportedly, even the recent search of Jared Fogle’s home involved a Labrador who found a thumb drive of potential evidence.

The dog is one of a handful or two nationwide that’s trained to sniff out electronics and their component parts based on a chemical that’s common to all of them. Law enforcement won’t identify the chemical, but after a few months of training, the dogs learn to detect its odor. They can then be used to search for anything from laptops, tablets, and hard drives to thumb drives, circuit boards, and tiny memory cards.

It’s a relatively new advent but one that’s catching on quickly.

Still, we should remain wary of the potential for abuse. A lot depends on how well these dogs are trained and how scrupulously they are used by their handlers, among other things.

These Walls Are Thin

A federal court of appeals recently issued an interesting opinion that touched on law enforcement’s use of new radar technology that can peer through the walls of your home. Reportedly, at least fifty agencies have quietly equipped their agents with such devices, and other, similar devices boast even greater capabilities.

Here’s the backstory. The defendant was on the lam. He’d been convicted of armed robbery and served time for it but then stopped reporting to his probation officer and disappeared. Federal marshals went looking for him and were able to tie his name to a residential address, so they went to that address with an arrest warrant. The warrant gave them the right to enter the home if they had reason to believe the defendant was there at the time. Payton v. New York, 445 U.S. 573, 603 (1980). From outside the walls, the deputies used a handheld radar device to detect human breathing and movement on the inside, and it registered someone’s presence. Based on that and other information, they stormed the residence, found the defendant there, arrested him, and seized two guns they found with him. The guns led to a new conviction for felon in possession of a firearm.

On appeal, the defendant argued that the deputies entered the home without sufficient reason to believe he was there, given that they searched the home using the radar device without a warrant in violation of the Fourth Amendment. Previously, the Supreme Court had held that the government needed a search warrant to use thermal imaging technology to see inside a home. Kyllo v. United States, 533 U.S. 27, 33-36 (2001).

But in this case, the court of appeals disagreed. First, it noted a split of opinion among the federal courts regarding whether “reason to believe” meant probable cause or something less than that. See, e.g., United States v. Gorman, 314 F. 3d 1105, 1112 & n.6 (9th Cir. 2002). Then it concluded that, even if the deputies needed probable cause to believe the defendant was inside the home before they entered it, they had it. First, they knew he had recently opened a utility account for the home and was the primary account holder. Second, they knew he hadn’t reported any income from employment recently, which suggested he’d be home in the morning on a weekday. Third, they knew he was on the lam and thus more likely to hole up at home anyway than gallivant about town. And fourth, they noticed that the home’s electric meter was spinning faster than usual, which suggested someone was inside using the electricity. Under these circumstances, the court found enough reason under either standard to believe defendant was home at the time.

Still, the court couldn’t help commenting on the new technology:

“It’s obvious to us and everyone else in this case that the government’s warrantless use of such a powerful tool to search inside homes poses grave Fourth Amendment questions…. We have little doubt that the radar device deployed here will soon generate many questions for this court and others ….”

“The Right of Working Stiffs Not to Endure Forced Colonoscopies”

Wow. This story has made the rounds, but if you hadn’t heard, there was a bit of a ruckus in New Mexico recently when police stopped a 54-year-old guy with a five-year-old conviction for meth possession, thinking he might have drugs again.

So they asked him to step out of his car, and as it happened, they didn’t find any drugs on the guy or in his car. Their canine, however, alerted to the car (supposedly), and one of the officers wrote that the guy’s posture was “erect and he kept his legs together.” Who knows.

Whatever the facts, it’s hard to imagine what possessed the officers to do what they did next, which is to place the man in handcuffs and take him on a nightmare tour of local-area hospitals that ended only after two rectal exams, three enemas, and a colonoscopy. None of it voluntary, and still no drugs!

It was so bad that the first hospital they took him to wouldn’t do it. They asked one of the doctors there to forcibly search the man’s rectum, and the good doctor refused, saying it would be unethical. “I was pretty sure it was the wrong thing to do,” the doctor deadpanned. “It was not medically indicated.”

Throughout the ordeal, the officers didn’t let the man make a phone call, and they forced him to have bowel movements in front of them and others. Thirteen hours later, they finally let him go home to wait for a $6,000 hospital bill.

Well, the guy sued, and apparently, the city and county have settled the lawsuit for $1.6 million. “Nothing was found inside of Mr. Eckert,” reads the police report. But really, does it altogether matter?

In Your Face: Law Enforcement Expands Its Use of Mobile Face-Recognition Technology

In another example of how technology is changing not just criminal justice but life as we know it, San Diego County has been quietly rolling out a new facial recognition system that will affect how police conduct simple stops on Americans.

The system, which allows officers to use mobile devices to collect face images in the field, already has a database of 1.4 million images, and it serves nearly 25 federal, state, and local law-enforcement agencies in the region. These include federal agencies like the DEA (Drug Enforcement Administration) and ICE (Immigration and Customs Enforcement) as well as state and local agencies such as the California Highway Patrol, the San Diego Sheriff’s Department, and the San Diego Unified School District. Apparently, even the California Department of Insurance and the Del Mar Park Rangers now have mobile face-recognition devices. The system returns high-accuracy results in about eight seconds.

Because the system allows officers to upload photos right from the field, one concern is that an officer can stop a person on the street, take her picture, and enter that picture in a biometric database based on little or no suspicion. Another is that, while the devices are supposed to be issued to “terrorism liaison” officers, none of the documentation so far has shown any nexus between their use and terrorism investigations.

Federal Court of Appeals Holds that Police Need a Warrant to GPS-Track Your Car

Warren Buffett said in an interview recently, “If a cop follows you for 500 miles, you’re gonna get a ticket.”

Now, that’s a great line. And last week, in a different context, the Third Circuit Court of Appeals sounded a somewhat similar note when it held, quite logically, that if the government wants to attach a GPS tracking device to your car to spy on you wherever you go, it needs to get a warrant and show probable cause. The case is United States v. Katzin.

The Third Circuit covers Delaware, New Jersey, and Pennsylvania (as well as the Virgin Islands), but federal circuit decisions have persuasive force across the country and often shape law nationwide. For example, in 2010, the Sixth Circuit was the first in the country to hold that the government violates the Fourth Amendment when it accesses your emails without a warrant and probable cause. That decision has reportedly affected office-wide practice in several U.S. Attorney’s Offices around the country, though it has met with resistance in other quarters.

The law is evolving. As recently as 2010, the Ninth Circuit Court of Appeals, which covers California and several other states, held that attaching a GPS tracker to a car didn’t even constitute a search within the meaning of the Fourth Amendment. Then last year, the Supreme Court decided United States v. Jones and clarified that, yes Virginia, tracking a car like that was indeed a search; the Fourth Amendment was alive (if not well); and reports of its demise had been exaggerated (to mix a couple of cultural anecdotes). In a concurring opinion in Jones, Justice Samuel Alito sensibly based his reasoning on our reasonable expectations of privacy, observing that, until very recently, “society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.”

In the Katzin case, the Third Circuit said a couple important things. For one, the court denied that the “automobile exception” to the warrant rule applies to GPS tracking. As you may know, the longstanding automobile exception permits warrantless searches of cars because cars are mobile, and suspects can drive away with the evidence. But the court rejected its application in this case, explaining that the automobile exception was not intended to “permit [police] to leave behind an ever-watchful electronic sentinel in order to collect future evidence” without any judicial oversight.

Second, the court denied that the “good-faith exception” applied to absolve the government’s conduct. Under the good-faith exception, evidence obtained by way of a Fourth Amendment violation is not excluded at trial if the police relied on a reasonable, good-faith belief that the law permitted their conduct. The Katzin Court rejected that argument, however, even though the law was arguably unsettled at the time of the events in question.

The takeaway is that, when in doubt, we should err on the side of getting a warrant, rather than not getting one. Hopefully, other courts will follow suit.

Your Cell Phone Meets Warrantless Border Searches in the Digital Age

The amount of personal papers and effects that we travel around with used to be cabined by the size of our cars or luggage.

No more.

Today, our phones, tablets, and laptops are veritable supercomputers capable of storing more information than an entire warehouse of documents. What’s more, they often hold confidential, proprietary, or otherwise sensitive information, including the most intimate details of our lives.

So what about searches at the border or airport? Those are exempt from the general rule that authorities must obtain a warrant supported by probable cause before they search or seize. The rationale is, well, to protect the border, but in the digital age, the exception can threaten the rule.

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