Filed in 2020
Alasaad v. Wolf, U.S. Court of Appeals, Case Nos. 20-1077 & 20-1081. The government's practice of warrantlessly searching travelers' electronic devices at the border violates the Fourth and Sixth Amendments. For many criminal defense lawyers, their work compels them to cross the border with their devices, which they use as their virtual law office. The attorney-client privilege and the Constitution protect the information on those devices. Requiring the government to get a warrant for device searches at the border would trigger the judicial supervision that is necessary to protect that information and associated rights.
State v. Jackson, New Jersey Supreme Court, Case No. 083286 (A-18/19-19), 460 N.J. Super. 258 (App.Div. July 19, 2019), brief filed 1/3/20. Fourth Amendment---Article I, Paragraph 7, NJ State Constitution---Recorded Jail Calls—Warrant Requirement---Inculpatory Information---Reasonable Expectation of Privacy---Consent. Brief of Amici Curiae The American Civil Liberties Union, The American Civil Liberties Union of New Jersey, The National Association of Criminal Defense Lawyers, and The Association of Criminal Defense Lawyers of New Jersey. Argument: The state violates the Fourth Amendment and article 1, paragraph 7 when it obtains access to an incarcerated person’s recorded telephone conversations without a warrant. Jackson had a reasonable expectation of privacy in the calls he made to his mother from jail. Jackson did not forfeit all privacy rights in his telephone conversations by exposing them to jail staff for security monitoring purposes. Jackson did not consent to the State accessing his calls for its use in his prosecution. Requiring prosecutors to secure warrants in order to access jail calls is the only adequate way to protect the constitutional and policy interests the calls implicate. Authors: Alexander Shalom and Jeanne LoCicero, American Civil Liberties Union of New Jersey Foundation, Newark, NJ; Sharon Bittner Kean, Association of Criminal Defense Lawyers of New Jersey, Madison, NJ; Daniella Gordon, Hyland Levin Shapiro LLP, Marlton, NJ.
Filed in 2019
Jewel v. National Security Agency, 9th Circuit Court of Appeals; Case No. 15-16133. On appeal from the U.S. District Court for the Northern District of California, Case No. 4:08-cv-04373-JSW. The government's mass interception and scanning of Americans' Internet communications is a search and seizure, triggering the Fourth Amendment's warrant requirement. The "special needs" exception to the warrants requirement cannot justify the government's surveillance program. Foreign Intelligence is not the "primary purpose" of the NSA's dragnet surveillance program. The impact of the intrusion from the NSA's Internet surveillance outweighs the government's need. The privacy interests harmed by upstream surveillance outweigh the government's interest in the program. Indiscriminately seizing and searching communications will include attorney-client communications and therefore impact individuals' Sixth Amendment rights. Benjamin B. Au, Tara J. Norris, and W. Henry Huttinger, Durie Tangri LLP, Los Angeles, CA; Catherine R. Gellis, Sausalito, CA; Michael Price, NACDL, Washington, DC; Gia L. Cincone, NACDL, San Francisco.
Filed in 2018
United States v. Henderson, 9th Cir., No. 17-10230, panel decision 906 F. 3d 1109 (9th Cir. Oct. 23, 2018), brief filed 12/17/18. Fourth Amendment---Warrant---Void for Lack of Jurisdiction---Good-Faith Exception---Exclusionary Rule---Multi-State Electronic Communications---“Network Investigative Techniques”---Systemic Negligence---Forum Shopping. Brief Amici Curiae of the National Association of Criminal Defense Lawyers and the Electronic Frontier Foundation in Support of Appellant’s Petition for Panel Rehearing and Rehearing En Banc. Argument: The petition presents a constitutional issue of exceptional importance because the panel decision excuses “systemic negligence” in the digital age. Rehearing is warranted to ensure that extra-jurisdictional warrants comply with the laws where evidence is search or seized. Rehearing is warranted to clarify that the good-faith exception does not apply to warrants void for lack of jurisdiction where the agency obtaining the warrant was or should have been aware of the defect. Author: Michael Price, NACDL, Washington, DC; Donald M. Falk, Mayer Brown LLP, Palo Alto, CA; Andrew Crocker, EFF, San Francisco, CA.
United States v. Ackerman, 10th Cir., Case No. 17-3238, decision below 2017 WL 4890433 (D. Kan. Oct. 30, 2017), denied rehearing and rehearing en banc via 826 F.3d 214 (5th Cir. June 10, 2016), brief filed 4/13/18. Fourth Amendment---Email---Privacy---Reasonable Expectation of Privacy---Third Party Doctrine---Third Party Service Provider---Terms of Service---Termination of Account. Brief of Amici Curiae Electronic Frontier Foundation, Brennan Center for Justice, Center for Democracy and Technology, and National Association of Criminal Defense Lawyers in Support of Defendant-Appellant and Reversal. Argument: The district court’s opinion undermines widely recognized Fourth Amendment protections for email. The expectation of privacy in email is reasonable and well established. The ability of a third party service provider to access emails does not defeat the user’s reasonable expectation of privacy. An email provider’s terms of service should not defeat a user’s reasonable expectation of privacy in email. The district court’s holding that AOLs TOS extinguished defendant’s reasonable expectation of privacy is inconsistent with established Fourth Amendment protections for email. Fourth Amendment protection should not depend on private agreements between email service providers and their users. Finding that contractual terms impact a user’s expectation of privacy against the government would lead to absurd results. A reasonable expectation of privacy does not end just because an account is terminated. Upholding the district court would reinstate the third-party doctrine for email and create a split of authority with the Sixth Circuit. Authors: Jennifer Lynch and Andrew Crocker, EFF, San Francisco, CA; Barbara E. Bergman, NACDL, Tucson, AZ.
Filed in 2017
Dahda v. United States, U.S. Sup. Ct., No. 17-43, decision below 853 F.3d 1101 (10th Cir. Apr. 4, 2017), brief filed 12/7/17. Title III, Omnibus Crime Control and Safe Streets Act of 1968---18 U.S.C. §§ 2510-2520---Wiretap---Territorial Limitation---Suppression---Privacy---Fourth Amendment---FRCrP 41. Brief of Amici Curiae Electronic Frontier Foundation and National Association of Criminal Defense Lawyers in Support of Petitioners. Argument: Title III, including its territorial limitation, was expressly designed to limit intrusion and protect privacy. Title III’s territorial limitation is an important component of the statute’s restrictive framework. Congress imposed the “automatic” remedy of suppression to enforce the statute as a whole. Authors: Ilana H. Eisenstein, Jason D. Gerstein, and Marc A. Silverman, DLA Piper LLP (US), Philadelphia, PA; Jennifer Lynch and Andrew Crocker, Electronic Frontier Foundation, San Francisco, CA; Jeffrey T. Green, NACDL, Washington, DC.
Byrd v.United States, U.S. Sup. Ct., No. 16-1371, decision below 679 Fed.Appx. 146 (3rd Cir. Feb. 10, 2017 (filed)), brief filed 11/20/17. Fourth Amendment---Search---Rental Car---Authorized Operator---Property Interest---Reasonable Expectation of Privacy---Disproportionate Harm to Poor and People of Color. Brief of the American Civil Liberties Union and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner. Argument: The Fourth Amendment applies to the search of a rental car operated by an individual with express authorization to operate the vehicle. The Fourth Amendment applies to petitioner because he had a property interest in the rental vehicle at common law. The officers’ search intruded upon petitioner’s reasonable expectation of privacy. The ruling below disproportionately harms low-income individuals and people of color. The ruling below restricts Fourth Amendment protections for a ubiquitous part of the economy that is critically important to low-income individuals. The ruling below disproportionately harms people of color, who are more likely to be pulled over by police while driving and to be searched after being pulled over. Authors: Jeffrey T. Green and Michael B. Buschbacher, Sidley Austin LLP, Washington, DC; Joshua L. Dratel, NACDL, New York, NY.
Collins v. Virginia, U.S. Sup. Ct., No. 16-1027, decision below 292 Va. 486 (Sept. 15, 2016), brief filed 11/20/17. Fourth Amendment---Warrantless Invasion of Home or Its Curtilage---Parked Automobile/Motorcycle. Brief for the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner. Argument: The police’s warrantless intrusion into a home or its curtilage is presumptively unconstitutional. A showing of exigent circumstances is required to justify a warrantless intrusion on a person’s home or its curtilage. An automobile’s inherence mobility, in and of itself, is not a per se exigent circumstance justifying a warrantless intrusion on the home or its curtilage. Authors: Douglas Hallward-Driemeier and Emerson Siegle, Ropes & Gray LLP, Washington, DC; Aaron Katz and Deena Feit, Ropes & Gray LLP, Boston, MA; Jonathan Hacker, NACDL, Washington, DC..
United States v. Lambus, et al.,2nd Cir., Case No. 16-4296, decisions below 221 F.Supp.3d 319 (E.D.N.Y. Dec. 22, 2016) and 251 F.Supp.3d 470 (E.D.N.Y. May 4, 2017), brief filed 11/8/17. Warrantless GPS Monitoring---Privacy---Fourth Amendment---Parolees---Wiretap Evidence---Suppression---Franks---Title III. Brief for Amici Curiae the National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers in Support of Defendants-Appellees. Argument: The GPS monitoring required a warrant. New York parolees have privacy rights. New York parolees’ privacy rights are violated when they are subject to warrantless searches for general law enforcement and not parole purposes. The warrantless GPS tracking here violated Lambus’ privacy rights. A reversal would have disastrous policy implications. The district court properly suppressed the wiretap evidence. Franks requires suppression of the wiretap evidence. Franks should be read to be consistent with Title III. Franks requires suppression of the knowing violation found here. A district court has the inherent authority to suppress unlawfully gathered evidence in order to maintain the integrity of its own proceedings. Authors: Michael C. Miller, Jeffrey Novack, Meghan Newcomer, and David Hirsch, Steptoe & Johnson LLP, New York, NY; Lindsay A. Lewis, NACDL, New York, NY.
United States v. Owens, 7th Cir., No. 17-1989, On Appeal from the United States District Court for the Eastern District of Wisconsin, Case No. 16-cr-00038-JPS, brief filed 9/12/17. Fourth Amendment---General Warrant---Particularity---Government Hacking---Malware---Digital Devices. Brief of Amici Curiae Electronic Frontier Foundation, American Civil Liberties Union Foundation, ACLU of Wisconsin, Inc., and the National Association of Criminal Defense Lawyers in Support of Defendant-Appellant. Argument: The warrant violated the Fourth Amendment because it failed to particularly describe what was being searched and where those searches would occur. Particularity was critical given the series of invasive searches and seizures carried out each time the malware was deployed. Other constitutionally suspect types of warrants offer far more particularity than the warrant here. Authors: David Greene, Andrew Crocker, and Mark Rumold, Electronic Frontier Foundation, San Francisco, CA; Carol A. Brook, NACDL, Chicago, IL.
Carpenter v. United States, U.S. Sup. Ct., No. 16-402, decision below 819 F.3d 880 (6th Cir. Apr. 13, 2016), brief filed 8/14/17. Fourth Amendment---Historical Cell Site Location Information---Warrantless Search and Seizure---Privacy---Third-Party Doctrine---Riley---Jones. Brief of Amici Curiae Electronic Frontier Foundation, Brennan Center for Justice, The Constitution Project, National Association of Criminal Defense Lawyers and National Association of Federal Defenders in Support of Petitioner. Argument: There has been a dramatic increase in location data generated by cell phones, collected by third parties, and routinely obtained by law enforcement without a warrant. Cell Site Location Information (CSLI) paints a revealing portrait of a person’s movements, presenting even greater privacy concerns than the GPS tracker at issue in Jones. The Third-Party Doctrine is “ill-suited to the digital age” and should not apply to CSLI. Authors: Andrew Crocker, Jennifer Lynch, and Jamie Williams, Electronic Frontier Foundation, San Francisco, CA; David Oscar Markus, NACDL, Miami, FL.
Mohamud v. United States, U.S. Sup. Ct., Case No. 17-5126, on petition for a Writ of Certiorari to the U.S. Court of Appeals for the Ninth Circuit, decisions below 843 F.3d 420 (9th Cir. Dec. 5, 2016) and 666 Fed.Appx. 591, (9th Cir. Dec. 5, 2016), brief filed 8/10/17. Sixth Amendment---Jury Trial Right---Sua Sponte Harmless Error Analysis---Fourth Amendment---Warrantless Surveillance---Electronic Communications---Section 702---Third-Party Doctrine---First Amendment---Separation of Powers. Brief of Amici Curiae National Association of Criminal Defense Lawyers, Ninth Circuit Federal Public and Community Defenders, and Professor Erwin Chemerinsky in Support of Petition for a Writ of Certiorari. Argument: The Court should grant the writ to clarify the appropriate standard for a sua sponte harmless error analysis. To safeguard the Sixth Amendment jury trial right, harmless error review must be carefully limited. The Court of Appeals’ harmless error analysis ignored this Court’s limits and violated petitioner’s Sixth Amendment jury trial right. The Court of Appeals’ deeply flawed conclusion demonstrates the dangers of sua sponte harmless error review. The Ninth Circuit’s affirmance of warrantless surveillance under § 702 contravenes this Court’s jurisprudence and, left uncorrected, will eliminate vast swaths of core Fourth Amendment protection. The reach of the Fourth Amendment exception adopted by the Ninth Circuit is too great to survive constitutional scrutiny and conflicts with this Court’s precedent. The Court of Appeals erroneously expanded the third-party doctrine. Review should be granted because § 702 implicates linked constitutional concerns involving the Fourth Amendment, First Amendment, and separation of powers. This is the correct—and perhaps only—vehicle to resolve these constitutional questions. Authors: John D. Cline, Law Office of John D. Cline, San Francisco, CA; Joshua L. Dratel, Law Offices of Joshua L. Dratel, P.C., New York, NY.
Robinson v. United States, U.S. Sup. Ct., Case No. 16-1532, on petition for a Writ of Certiorari to the U.S. Court of Appeals for the Fourth Circuit, decision below 846 F.3d 694 (4th Cir. Jan 23, 2017), brief filed 7/24/17. Unchecked Racial Profiling---Terry v. Ohio---Stop-and-Frisk---Fourth Amendment---Open Carry Laws---Federalism. Brief of the National Association of Criminal Defense Lawyers in Support of Petitioner (on petition for writ of certiorari). Argument: The decision below merits review because, given the expansion of lawful public carrying, it opens the door to unchecked racial profiling. Over the past two decades, and especially in recent years, states have been expanding the rights of their citizens to carry firearms in public. The per se rule endorsed below allows for unchecked racial profiling, as officers encounter more citizens who are—or may be—legally armed. The decision below merits review because it sets the Fourth Amendment against state policy judgments, the common law, and this Court’s precedent. The per se assumption endorsed by the Fourth Circuit undermines the considered policy judgments of state legislatures. A per se assumption is inconsistent with the common law and rests on a faulty reading of precedent. Authors: C. Kevin Marshall and Nicholas R. Reaves, Jones Day, Washington, DC; Jeffrey T. Green, NACDL, Washington, DC.
United States v. Molina-Isidoro, 5th Cir., No. 17-50070, decision below 2016 WL 8138926 (W.D. Tex. Oct. 7, 2016), brief filed 8/7/17. Fourth Amendment---Border Searches---'Routine'/'Non-Routine'---Digital Devices---Privacy---Probable Cause Warrant---Riley---Cotterman. Brief of Amici Curiae Electronic Frontier Foundation, Asian Americans Advancing Justice-Asian Law Caucus, Council on American-Islamic Relations (CAIR), CAIR California, CAIR Florida, CAIR New York, CAIR Ohio, and the National Association of Criminal Defense Lawyers in Support of Defendant-Appellant. Argument: Digital devices contain and access vast amounts of highly personal information. The border search exception is narrow. All border searches of digital devices, whether "manual" or "forensic," are highly intrusive of personal privacy and are thus "non-routine." A probable cause warrant should be required for boarder searches of data stored or accessible on digital devices. A probable cause warrant should be required given the highly personal information stored and accessible on digital devices. A probable cause warrant should be required because searching digital data is not tethered to the narrow purposes of the Border Search Exception. Authors: Mitchell L. Stoltz, Sophia Cope, and Adam Schwartz, Electronic Frontier Foundation, San Francisco, CA; Nicole DeBorde, NACDL, Houston, TX; Cynthia Orr, NACDL, San Antonio, TX; and Michelle Simpson Tuegel, NACDL, Waco, TX.
United States v. McLamb, 4th Cir., No. 17-4299, On Appeal from the United States District Court for the Eastern District of Virginia, Norfolk Division, Case No. 2:16-cr-00092-RBS, brief filed 6/27/17. Fourth Amendment---General Warrant---Particularity---Government Hacking---Malware---Digital Devices. Brief of Amici Curiae Electronic Frontier Foundation and the National Association of Criminal Defense Lawyers in Support of Defendant-Appellant. Argument: The warrant failed to particularly describe what was being searched and where those searches would occur. Particularity was critical given the series of invasive searches and seizures carried out each time the malware was deployed. Other constitutionally suspect types of warrants offer far more particularity than the warrant here. Authors: Cindy Cohn, Mark Rumold, and Andrew Crocker, Electronic Frontier Foundation, San Francisco, CA; Elizabeth A. Franklin-Best, NACDL, Columbia, SC.
Filed in 2014
Heien v. North Carolina, U.S. Sup. Ct., No. 13-604, decision below 366 N.C. 271, 737 S.E.2d 351 (N.C. 2012), brief filed 6/17/14. Fourth Amendment---Reasonable Suspicion—Investigatory Stops---Mistake of Law---Mistake of Fact. Brief for the National Association of Criminal Defense Lawyers the Cato Institute, the American Civil Liberties Union, and the American Civil Liberties Union of North Carolina as Amici Curiae in Support of Petitioner. Argument: The North Carolina Supreme Court’s rule condoning traffic stops based on suspicion of perfectly lawful conduct ignores fundamental differences between mistakes of fact and mistakes of law. Treating mistakes of fact and law ‘the same’ under the Fourth Amendment contravenes well-established legal doctrine. There are important practical distinctions between mistakes of fact and mistakes of law. The North Carolina rule would have negative consequences for both individual citizens and law enforcement. The North Carolina Supreme Court’s rule will have negative consequences for individual liberty and will undermine law enforcement. Authors: Noah A. Levine, Jamie S. Dycus, Ari J. Savitzky, and Carleen M. Zubrzycki, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY; Jonathan D. Hacker, Washington, DC.
United States v. Wurie, U.S. Sup. Ct., No. 13-212, decision below 728 F.3d 1 (1st Cir. 2013), brief filed 4/9/14. Fourth Amendment---Searches Incident to Arrest--- Cellphones---Call Logs---Warrant Requirement. Brief of the National Association of Federal Defenders and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Respondent. Question Presented: Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cell phone found on a person who has been lawfully arrested. Argument: The First Circuit correctly held that the search-incident-to-arrest exception does not categorically authorize warrantless cell phone searches, but that the exigent circumstances exception can apply in particular cases. Smith v. Maryland does not support a rule allowing call logs to be searched incident to arrest. Maryland v. King and Florence v. Bd. Of Chosen Freeholders do not support warrantless cell phone searches incident to arrest. Authors: Jeffrey T. Green, Jacqueline G. Cooper, and Jeremy M. Bylund, Sidley Austin LLP, Washington, DC.
Riley v. California, U.S. Sup. Ct., No. 13-132, decision below People v. Riley, No. D059840, 2013 BL 34220, 2013 ILRC 1385 (Cal. App. 4th Dist. Feb. 08, 2013), brief filed 3/10/14. Fourth Amendment---Searches Incident to Arrest---Chimel---Cellphones/Smartphones---Warrant Requirement. Brief of the National Association of Criminal Defense Lawyers and the Brennan Center for Justice at New York University School of Law as Amici Curiae in Support of Petitioner. Argument: Mobile computing devices like the modern smartphone are unique. The capacity of mobile computing devices renders analogies to physical containers inapplicable. Mobile devices have been incorporated into modern living in a fundamentally private and personal way. The smartphone is the new instrument of First Amendment expression. The warrantless search of a smartphone incident to arrest is not justified under the search incident to arrest doctrine. Neither of the Chimel rationales is present with respect to the warrantless search of a cellphone. Permitting a warrantless search of a smartphone, but limiting it to evidence relating to the crime of arrest is unworkable. Cellphone data necessitates the protections of the warrant requirement. Technology has removed impediments to securing a warrant. A warrant is the only effective mechanism for managing governmental collection of cellphone data. Authors: Bronson D. James, Bronson James LLC, Portland, OR; Michael W. Price, Brennan Center for Justice, New York, NY.
Plumhoff v. Rickard, U.S. Sup. Ct., No. 12-1117, decision below Estate of Allen v. City of West Memphis, 509 Fed. Appx. 388 (6th Cir. 2012) (not selected for publication in the Federal Reporter, No. 11-5266), brief filed 2/5/14. Civil Case for Excessive Force---Qualified Immunity---Fourth Amendment. Amicus CuriaeBrief of the National Association of Criminal Defense Lawyers Supporting Respondent. Argument: If the Court of Appeals failed to determine whether petitioners’ conduct violated Rickard’s clearly established constitutional rights, this Court should remand the case to the Court of Appeals with instructions to do so. If the Court remands the qualified immunity issues, it should not reach the constitutional questions. A number of proffered justifications are inconsistent with clearly established law in 2004. A number of the justifications proffered by petitioners rest on disputed facts. The government does not advance a sound basis for concluding that the defendants are entitled to qualified immunity. Authors: Eric Schnapper, University of Washington School of Law, Seattle, WA; David Porter, Sacramento, CA.
Filed in 2013
Heien v. North Carolina, U.S. Sup. Ct., No. 13-604, decision below 366 N.C. 271, 737 S.E.2d 351 (N.C. 2012), brief filed 12/18/13. Fourth Amendment---Reasonable Suspicion—Investigatory Stops---Mistake of Law. Brief for the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner. Argument: Certiorari is warranted here based upon the entrenched, irreconcilable division among the federal courts of appeals and state courts of last resort on the question of whether a law enforcement officer’s reasonable mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify an investigatory stop. The North Carolina Supreme Court’s rule is flatly inconsistent with the principles underlying this Court’s Fourth Amendment jurisprudence. It has always been the province of the courts, not law enforcement, to determine and apply the law governing an investigatory stop. There is no basis under the Fourth Amendment for officers to conduct seizures based on nothing more than suspicion of conduct that violates no law. Second, the North Carolina Supreme Court’s rule, if left undisturbed, will have substantial negative effects, including condoning a broad swath of searches unrelated to suspicion of any violation of any actual law, and reducing or removing important incentives for police officers to understand thoroughly the laws they are charged with enforcing. Authors: Noah A. Levine, Adam P. Romero, Thaila K. Sundaresan, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY; Jeffrey T. Green, Washington, DC.
People v. Todd Johnson, New York Court of Appeals, APL-2013-00034, case below 99 A.D.3d 472, 952 N.Y.S.2d 38 (1st Dept. 2012), brief filed 12/27/2013. Fourth Amendment---Probable Cause—Arbitrary and Harassing Police Conduct---Disorderly Conduct---NY Penal Law § 240.20---Gang Activity. Brief of Amici Curiae the National Association of Criminal Defense Lawyers and the New York State Association of Criminal Defense Lawyers in Support of Defendant-Appellant. Argument: The order of the Appellate Division, First Department should be reversed, Mr. Johnson’s motion to suppress should be granted, and the conviction should be reversed. There was no probable cause to arrest Todd Johnson. Mr. Johnson’s alleged gang membership is entitled to no weight when assessing probable cause. Prior gang problems at the location did not establish probable cause to arrest Mr. Johnson. Partial obstruction of a doorway cannot provide a basis for probable cause without evidence of public harm. Were the Court to uphold probable cause on these facts, the New York disorderly conduct statute would be unconstitutional. Authors: William C. Silverman, Greenberg Traurig LLP, New York, NY; Richard D. Willstatter, White Plains, NY; Marc Fernich, New York, NY.
Navarette v. California, U.S. Sup. Ct., No. 12-9490, decision below People v. Navarette, No. A132353, 2012 BL 268067 (Cal. App. 1st Dist. Oct. 12, 2012), brief filed 11/21/13. Fourth Amendment---Terry v. Ohio—Reasonable Suspicion---Irregular Driving---Anonymous Tips. Brief of the National Association of Criminal Defense Lawyers and National Association of Federal Defenders as Amici Curiae in Support of Petitioners. Argument: The Fourth Amendment requires that police corroborate an anonymous tip that someone is driving irregularly before they stop the car. Uncorroborated anonymous tips lack the indicia of reliability necessary to establish reasonable suspicion. Because of the nature of road travel, uncorroborated, anonymous tips are especially unreliable. Anonymous tips cannot corroborate themselves. 911 technology cannot boost an anonymous tip’s reliability. This Court should not adopt an irregular driving exception to the Fourth Amendment. Empirical evidence and practical concerns militate strongly against such an exception. An irregular driving exception would increase the risk of police abuse. Authors: Daniel R. Ortiz, University of Virginia School of Law Supreme Court Litigation Clinic, Charlottesville, VA; Jeffrey L. Fisher, Stanford, CA; John P. Elwood, Vinson & Elkins LLP, Washington, DC; Sarah S. Gannett, Daniel Kaplan, David Lewis, Barbara Mandel, National Association of Federal Defenders, Philadelphia, PA.
Riley v. California, U.S. Sup. Ct., No. 13-132, decision below 2013 WL 475242 (Cal.App. 4 Dist. Feb. 8, 2013), unpublished/noncitable (Feb. 8, 2013), review denied (May 1, 2013), brief filed 8/30/13. Warrant Requirement---Search incident to Arrest Exception---Cell Phones---Smartphones—Fourth Amendment---First Amendment. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in support of Petitioner. Argument: The Supreme Court should grant the petition for writ of certiorari because the smartphone has assumed a unique role in modern society. The modern smartphone is a historically unique device with profound societal implications. Distributed computing and cloud data give mobile computing infinite capacity. Smartphone usage is now societally ubiquitous. This case presents the best vehicle for this Court’s analysis. The smartphone in this case, unlike the phone in Wurie, may possess First Amendment overtones affecting the Fourth Amendment analysis. Lower court divisions make this the right time for this Court to consider the issue. The nature and societal use of mobile data compels the result that the Fourth Amendment prohibits the warrantless search of the data of a cell phone incident to arrest. Authors: Bronson D. James, Beaverton, OR; Jeffrey T. Green, Washington, DC.
Commonwealth of Massachusetts v. Gelfgatt, Supreme Judicial Court of the Commonwealth of Massachusetts, Case No. SJC-11358, on report of a question of law by the superior court for Suffolk County pursuant to Mass. R. Crim. P. 34, brief filed 8/23/13. Compelled Password---Encrypted Hardware---Fifth Amendment---Self-incrimination---Fourth Amendment---Articles Twelve and Fourteen of the Massachusetts Declaration of Rights. Brief of Amicus Curiae filed by Daniel K. Gelb, Esquire and Daniel B. Garrie, Esquire to which National Association of Criminal Defense Lawyers joins in support of defendant-appellant. Issue Presented: Whether compelling a criminal defendant to provide a password for a piece of encrypted computer hardware seized by the Commonwealth violates one’s right against self-incrimination provided by the Fifth Amendment to the United States Constitution and Article Twelve of the Massachusetts Declaration of Rights. Argument: Compelling a password production to the Commonwealth is a violation of defendant’s right against self-incrimination pursuant to the Fifth Amendment of the United States Constitution and Article 12 of the Massachusetts Declaration of Rights. Society has adopted an objective expectation of privacy in computer passwords and encrypted data protected by the Fourth Amendment of the United States Constitution and Article 14 of the Massachusetts Declaration of Rights. Authors: Daniel K. Gelb, Gelb & Gelb LLP, Boston MA; Daniel B. Garrie, Law & Forensics, Seattle, WA.
Fernandez v. California, U.S. Sup. Ct., No. 12-7822, decision below 208 Cal.App.4th 100, 145 Cal.Rptr.3d 51 (App. 2d Dist. 2012), brief filed 8/7/13. Fourth Amendment---Georgia v. Randolph---Co-Tenants---Warrant Requirement. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner. Question Presented: Once a co-tenant has expressly told police officers that they may not enter his home, does the Fourth Amendment allow the officers to obtain valid consent to do so by removing the objecting tenant from the scene against his will and then seeking permission from the other tenant shortly thereafter? Argument: Shared social understandings reflected in property law demand that officers respect an individual’s pending assertion of his right to exclude outsiders from his home. Respect for the sanctity of the home and self-determination bar warrantless entry following the involuntary removal of an objecting resident. Property law reflects the deeply ingrained social expectation that an outsider cannot enter a home over a resident’s clear objection by obtaining another’s consent. There is no legitimate law enforcement need to circumvent Randolph by arresting an objecting occupant on his doorstep and seeking consent from other occupants. No legitimate law enforcement need supports reliance on disputed consent to search an objecting individual’s home. The warrant requirement imposes no unreasonable burden. The balance of competing interests strongly favors adhering to the warrant requirement. Authors: Jeffrey A. Lamken and Lucas M. Walker, MoloLamken LLP, Washington, DC; David P. Jang and Justin M. Ellis, MoloLamken LLP, New York, NY; David M. Porter, Sacramento, CA.
United States v. Davis, 11th Cir., Case No. 12-12928, case below No. 10-20896-CR (S.D. Fla. 2012), brief filed 7/17/13. Fourth Amendment---Historical Cell Site Location Information---Privacy---Good Faith Exception. Brief of Amici CuriaeAmerican Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Florida, Inc., Center for Democracy & Technology, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers. Argument: Warrantless acquisition of long-term historical cell site location information violated defendant’s reasonable expectation of privacy under the Fourth Amendment. Defendants’ cell site location information obtained by the government reveals invasive and accurate information about their location and movements over time. Obtaining 67 days’ worth of cell phone location data is a “search” under the Fourth Amendment requiring a warrant based upon probable cause. Cell phone providers’ ability to access customers’ location data does not eliminate cell phone users’ reasonable expectation of privacy in that data. Even if the good faith exception applies, this court should decide the Fourth Amendment question. Authors: Catherine Crump, Ben Wizner, and Nathan Freed Wessler (admission pending), ACLU Foundation, New York, NY.
United States v. Graham and Jordan, 4th Cir., Nos. 12-4659 & 12-4825, case below 846 F.Supp.2d 384 (D. Md., Mar. 1, 2012) (Crim. No. RDB-11-0094), brief filed 7/1/13. Fourth Amendment---Historical Cell Site Location Information---Privacy---Good Faith Exception. Brief of Amici Curiae American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Maryland, Center for Democracy & Technology, Electronic Frontier Foundation & National Association of Criminal Defense Lawyers in support of defendants-appellants’ appeal seeking reversal. Argument: Warrantless acquisition of long-term historical cell site location information violated defendants’ reasonable expectation of privacy under the Fourth Amendment. Defendants’ cell site location information obtained by the government reveals invasive and accurate information about their location and movements over time. Obtaining 221 or 14 days’ worth of cell phone location data is a “search” under the Fourth Amendment requiring a warrant based upon probable cause. Cell phone providers’ ability to access customers’ location data does not eliminate cell phone users’ reasonable expectation of privacy in that data. Even if the good faith exception applies, this court should decide the Fourth Amendment question. Authors: Catherine Crump, Nathan Freed Wessler, and Ben Wizner, American Civil Liberties Union Foundation, New York, New York.
Arizona v. Hon. Jane A. Butler and Tyler B.,Supreme Court of Arizona, No. CV-12-0402-PR, case below 231 Ariz. 42, 290 P.3d 435 (Ariz.App. Div. 2 Oct. 31, 2012) (No. 2 CA-SA 2012-0065), brief filed 3/15/13. Juvenile---Fourth Amendment---Blood Draw---Consent---School. Amici curiae brief of the Juvenile Law Center, the National Association of Criminal Defense Lawyers, et al. (totaling 41 groups and individuals set forth in Appendix A to the brief) in support of real party in interest Tyler B. Argument: Age and other circumstances particular to youth are crucial factors in assessing the voluntariness of a consent to a search under the Fourth Amendment. Where the search is conducted in the school setting, age is even more relevant to the voluntariness determination. Authors: Lourdes M Rosado, Juvenile Law Center, Philadelphia, PA; Jeanne Shirly, Tuscon, AZ.
Maryland v. King, U.S. Sup. Ct., No. 12-207, decision below 425 Md. 550, 42 A.3d 549 (Md. Apr. 24, 2012), brief filed 2/1/13. DNA Sample---Arrestee—Fourth Amendment---Searches---Balance of Interests. Amicus curiae brief of the National Association of Criminal Defense Lawyers supporting Respondent. Question presented: Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes? Argument: A state’s search for DNA samples from an arrestee’s body without a warrant or any basis for suspecting the DNA is connected to a crime is unreasonable, regardless of the balance of interests. Physically intrusive searches like the collection of DNA from inside an arrestee’s body require a warrant and probable cause. The balance of interests alone does no determine reasonableness even for less intrusive bodily searches. The state’s collection of DNA from arrestees falls outside the limited circumstances permitting warrantless, suspicionless searches. Accordingly, the judgment of the Maryland Court of Appeals should be affirmed. Authors: Lisa Blatt, Anthony J. Franze and Sarah M. Harris, Arnold & Porter LLP, Washington, DC; Jonathan Hacker, Washington, DC.
Filed in 2012
Florida v. Harris, U.S. Sup. Ct., No. 11-817, decision below 71 So.3d 756 (Fla. 2011), brief filed 9/4/12. Search and Seizure—Dog Sniffs—Motor Vehicles. Amicus curiae brief of the National Association of Criminal Defense Lawyers, Florida Ass’n of Criminal Defense Lawyers, the American Civil Liberties Union and the ACLU of Florida in support of the respondent. Argument: An alert by a “trained” or “certified” drug detection dog by itself is insufficient to establish probable cause; evidence of a dog’s reliability is but one factor in a totality-of-the-circumstances analysis recommended by the Florida Supreme Court. Real-world data demonstrate that even trained or certified dogs have a high rate of false alerts; brief lists a number of different factors relating to a drug dog’s reliability. Authors: Danielle Spinelli, Wilmer Cutler Pickering Hale and Door LLP, Washington, DC, et al. (see brief cover for complete list of authors).
Florida v. Jardines, U.S. Sup. Ct., No. 11-564, decision below 73 So.3d 34 (Fla. 2011), brief filed 7/9/12. Search and Seizure—Dog Sniffs—Private Residence. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Florida Association of Criminal Defense Lawyers in support of the respondent. Argument: Acting on a tip, police conducted a warrantless “canine sniff” with a drug detection dog of the front door of the defendant’s residence and obtained a search warrant based on the dog’s alert. Marijuana was found growing in the defendant’s home. The Florida Supreme Court held that the “sniff test” was itself a search requiring probable cause. Amici argue that persons have a heightened expectation of privacy in their homes and that dog sniffs are highly intrusive, since the sniff can reveal much more than the mere presence or absence of contraband and is a search within the meaning of the Fourth Amendment. Absent exigent circumstances, such a suspicionless search of a home is inherently unreasonable. Further, allowing suspicionless dog sniffs of houses would permit indiscriminate sweeps of residential neighborhoods, a practice some law enforcement officials have already begun to employ. Authors: Danielle Spinelli, et al., Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC; Jonathan D. Hacker, O’Melveny & Myers LLP, Washington, DC; Norman L. Reimer and Mason C. Clutter, NACDL, Washington, DC.
Simels v. United States, U.S. Sup. Ct., No. 11-947, decision below 654 F.3d 161 (2nd Cir. 2011), brief filed 2/28/12. Wiretapping—Suppression of Illegal Intercepts—Impeachment. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari. Argument: In the decision below, the Second Circuit held that the defendant’s testimony could be impeached with portions of an illegally obtained wiretap that the trial court had suppressed under Title III of the 1968 Omnibus Crime Act (18 U.S.C. §2515) (“the Wiretap Act”). In the context of Title III wiretap intercepts, the constitutional protections of the Fourth Amendment are a floor, not a ceiling; §2515 provides more protection than the Fourth Amendment in that the statute provides that illegally obtained oral or wire communications shall not be “received in evidence in any trial.” The judicially-created impeachment exception created by the Second Circuit collides with the fundamental protections underlying Congress’s enactment of Title III. Author: Joshua L. Dratel, Dratel & Mysliwiec, P.C., New York, NY.
United States v. Katzin, 3rd Circuit, No. 12-2548, decision below, Criminal Action No. 11-226, 2012 WL 1646894 (E.D. Pa. May 9, 2012), brief filed 11/13/12. Fourth Amendment—GPS—Vehicles--Warrants—Probable Cause—Exclusionary Rule--Reasonable Suspicion--“Special Need” Searches—Automobile Exception--Privacy. Joint Amicus curiae brief of the American Civil Liberties Union Foundation, the ACLU Foundation of Pennsylvania, the Electronic Frontier Foundation, and the National Association of Criminal Defense Lawyers in support of affirmance of the district court. Argument: Tracking a car by physically attaching a GPS device to it requires a warrant based on probable cause, without exception. The District Court correctly applied the exclusionary rule because the FBI agents did not rely on binding appellate precedent. Authors: Ben Wizner, Catherine Crump, and Nathan Wessler, American Civil Liberties Foundation, New York, NY; Witold J. Walczak and Sara J. Rose, ACLU Foundation of Pennsylvania, Pittsburgh, PA; Hanni Fakhoury and Marcia Hoffman, Electronic Frontier Foundation, San Francisco, CA; and Peter Goldberger, Ardmore, PA, for NACDL.
Filed in 2011
United States v. Jones, U.S. Sup. Ct., No. 10-1259, case below United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), brief filed 10/3/11, argument 11/8/11. GPS Surveillance--Search and Seizure--Warrant Requirement--Associational Privacy. Joint amicus curiae brief of the National Association of Criminal Defense Lawyers, Brennan Center for Justice at New York University School of Law, First Amendment Lawyers Association, District of Columbia Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, and the Ohio Association of Criminal Defense Lawyers. Argument: The decision of the D.C. Circuit Court of Appeals should be affirmed. Warrantless GPS surveillance imposes an unacceptable burden on First Amendment associational rights, as well as Fourth Amendment privacy rights. The warrant requirement is minimally burdensome, as illustrated by the facts of this case. There is nothing about the nature of motor vehicles that justifies a blanket exception to the warrant requirement, and the automobile exception manifestly does not apply to warrantless GPS tracking. Authors: Jeffrey T. Green, co-Chair of NACDL’s Amicus Curiae Committee and partner at Sidley Austin LLP in Washington, DC; Susan J. Walsh of Vladeck, Waldman, Elias & Engelhard in New York City; Professor Sarah O’Rourke Schrup of the Northwestern University Supreme Court Practicum in Chicago, Ill.; and Executive Director Norman L. Reimer and Deputy Director of Public Affairs & Communications Ivan J. Dominguez of NACDL in Washington, DC.
Filed in 2002
In Re Appeal from July 19, 2002 Decision of the United States Foreign Intelligence Surveillance Court, U.S. Foreign Intelligence Surveillance Ct. of Rev., No. 02-001; brief filed 9/19/2002. Fourth Amendment Search & Seizure – Probable Cause – Electronic Surveillance – Foreign Intelligence Information. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of a 2002 decision of the United States Foreign Intelligence Surveillance Court imposing certain “minimization requirements” on an order authorizing electronic surveillance of an “agent of a foreign power” who is a American citizen. Argument: The Fourth Amendment requires a warrant and probable cause to conduct electronic surveillance of an American citizen where the “primary” purpose of the surveillance is criminal investigation, even if the collection of foreign intelligence information is a “significant” secondary purpose. The USA PATRIOT Act in 2001 unconstitutionally amends the Foreign Intelligence Surveillance Act (FISA) to permit the Department of Justice (DOJ) to conduct warrantless electronic surveillance of an American citizen when foreign intelligence is a “significant purpose” rather than the “primary purpose.” FISA’s so-called “privacy protections” are “illusory” and do not “justify abandoning the Fourth Amendment warrant and probable cause requirements.” Authors: John D. Cline and Zachary A. Ives, Freedman, Boyd, Daniels, Hollander, Goldberg, & Cline P.A., Albuquerque, NM; Joshua Dratel, New York, NY.
