Search and Seizure

  • August 12, 2016
    Guest Post

    by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department 

    On Wednesday, August 10, the Department of Justice (DOJ) released the findings of its investigation into the Baltimore City Police Department (BPD) that followed troubling allegations raised in the aftermath of the death of Freddie Gray at the hands of the BPD in April of 2015. At that time (as well as long before and continuing to the present), there were consistent and hauntingly similar reports that the department had repeatedly and pervasively engaged in practices and policies that infringed upon the First and Fourth Amendment rights of community residents in Baltimore, and particularly residents in communities of color.

    The investigation by the DOJ found that the BPD “makes stops, searches and arrests without the required justification; uses enforcement strategies that unlawfully subject African Americans to disproportionate rates of stops, searches and arrests; uses excessive force; and retaliates against individuals for their constitutionally-protected expression.” The DOJ report found that the BPD engages in “pattern and practice” violations of the Fourth Amendment, specifically in “focusing enforcement strategies on African Americans, leading to severe and unjustified racial disparities in violation of Title VI of the Civil Rights Act and the Safe Streets Act.”

    In addition to engaging in repeated practices of using excessive force, the DOJ investigation reported that the BPD also “interact(s) with individuals with mental health disabilities in a manner that violates the Americans with Disabilities Act.” The BPD was also found to have engaged in a pattern and practice of repeatedly violating the rights of individuals and groups that are protected under the First Amendment, including freedom of speech and freedom of assembly.

  • October 20, 2015
    Guest Post

    by Brad Smith, president and chief legal officer, Microsoft

    *This piece first appeared at Microsoft on the Issues

    When people who care about technology look back at the year 2015, they will remember October as the month when the EU-U.S. Safe Harbor collapsed. An international legal agreement that has been in place for 15 years was invalidated in a single day. On Oct. 6, the Court of Justice of the European Union struck down an international legal regime that over 4,000 companies have been relying upon not just to move data across the Atlantic, but to do business and serve consumers on two continents with over 800 million people.

    The decision made clear what many have been advocating for some time: Legal rules that were written at the dawn of the personal computer are no longer adequate for an era with ubiquitous mobile devices connected to the cloud. In both the United States and Europe, we need new laws adapted to a new technological world.

    As lawyers and officials scurry to assess the situation, it’s apparent that both a variety of smaller steps and a more fundamental long-term change will be needed. We need to focus on both of these aspects.

    It’s important to focus on a wide variety of steps, especially given the potentially drastic ripple effects caused by the collapse of the U.S.-EU Safe Harbor. Government officials in Washington and Brussels will need to act quickly, and we should all hope that Congress will enact promptly the Judicial Redress Act, so European citizens have appropriate access to American courts. In addition, companies like our own that have put in place additional safeguards such as the EU Model Clauses will rely on and add to them, even while everyone discusses additional measures.

    But for the sake of the long-term we should also recognize some obvious and fundamental facts. We need solutions that will work not just for large tech enterprises but for small companies across the economy, and for consumers most of all. If we’re going to ensure that data more broadly can move across the Atlantic on a sustainable basis, we need to put in place a new type of trans-Atlantic agreement. This agreement needs to protect people’s privacy rights pursuant to their own laws, while ensuring that law enforcement can keep the public safe through new international processes to obtain prompt and appropriate access to personal information pursuant to proper legal standards.

  • September 4, 2015
    Guest Post

    by Anupam Chander, Director of the California International Law Center and Professor of Law at the University of California, Davis. He is the author of The Electronic Silk Road: How the Web Binds the World Together in Commerce, published by Yale University Press.

    *This post is part of ACSblog’s symposium examining proposed reforms to the Electronic Communications Privacy Act (ECPA).

    My parents grew up in a pen and paper world, where most of their writings and records were kept at home, in their offices, or with close confidantes. I grew up in a world of computers, but even my writings were mostly kept at home on hard drives and floppy disks (for today’s students, many of whom have never seen a floppy disk, a history of the floppy disk). My first writings were kept, astonishingly, on a cassette recorder, which stored what I typed on my TRS-80, a computer made by Radio Shack. That computer had a total memory of 16K, roughly 16,000 characters (not even words) of text.

    My children are growing up in the cloud, where their writings and their records are being stored in remote computers. Because those computers are managed by Dropbox, Google, Microsoft, and their peers, their writings are far more secure than I ever managed when I stored my files on a floppy or a hard drive, both of which failed with remarkable regularity and maximally devastating timing.

    But even if our kids never know the pain of losing a week’s work to faulty computing or an accidental deletion, they face a world where their writings are far more subject to government scrutiny than mine ever were. Not only are their writings subject to government searches, but also their whereabouts, through the tracking of smartphones. This is because while the Fourth Amendment clearly protects homes from searches and seizures without a warrant, it is not so clear that it protects writings and the records about us stored on a remote computer.

    Do our children deserve less protection from government snooping because they are relying on cloud services? Right now, the law says that if the government wants to read what’s on my home computer, it has to get a warrant to do so. But if the government wants to read what our kids are storing privately online, they may not. (For a more detailed account of when the government can access information online without a warrant, see this ProPublica summary, updated as of June 2014, but not including Riley v. California, described below.)

  • April 7, 2015
    Guest Post

    by Jamie Hoag, Co-President of the ACS Boston Lawyer Chapter

    What do the cases United States v. Approximately 64,695 Pounds of Shark Fins and State of Texas v. One 2004 Chevrolet Silverado have in common?  They both involve the practice of civil forfeiture - the seizure of property that law enforcement officials suspect of being involved in criminal activity.  While in criminal forfeiture the government has to prove a defendant’s guilt beyond a reasonable doubt in order to seize property tied to the criminal activity, that’s not the case in civil forfeiture proceedings.  In these actions, the property itself is charged with a crime – hence the strange case titles – and it is not necessary for the government to demonstrate that a property owner is guilty of any misconduct.  In fact, civil forfeiture often takes place even when criminal charges are never filed.

    As described in an extensive study done by the Institute for Justice, civil forfeiture laws at the federal level and in 42 states perversely incentivize forfeiture actions.  The money is often used to pay salaries and purchase equipment, providing an incentive for law enforcement officials to increase the number of seizures.  In Philadelphia alone, officials seized approximately $64 million dollars in assets in a 10-year period, and the Philadelphia District Attorney’s office used $25 million of that to pay salaries.  A class action lawsuit has been filed challenging Philadelphia’s appetite for civil forfeiture proceedings.

    The practice is getting the scrutiny and criticism it deserves.  In a comprehensive investigation, The Washington Post reported last year that police have seized almost $2.5 billion from motorists and others without search warrants or criminal indictments since September 11, 2001.  The New Yorker also examined the out of control practice, as did one late night comedy show.  In addition, the Department of Justice report on the Ferguson police department highlighted the role of law enforcement as a municipal revenue generator, noting that the city’s law enforcement activity “shaped by the City’s pressure to raise revenue, has resulted in a pattern and practice of constitutional violations.”

  • April 1, 2015
    Guest Post

    by Leslie A. Shoebotham, Victor H. Schiro Distinguished Professor of Law, Loyola University New Orleans

    This week, the U.S. Supreme Court in a per curiam opinion held that monitoring a recidivist sex offender via an ankle bracelet device was a “search” for Fourth Amendment purposes.  In Grady v. North Carolina, the Court concluded that United States v. Jones controlled the case – i.e., attachment of an ankle bracelet and monitoring of the device to determine Grady’s location was a “search,” just as the government’s attachment and monitoring of a Global Positioning System (GPS) device onto Jones’s vehicle was a Fourth Amendment search.  The Court issued a summary reversal of the North Carolina Supreme Court’s non-search decision and remanded the case to the state courts to determine whether the search is reasonable based on the totality of the circumstances.

    Because of society’s strong interest in preventing child sexual abuse, as well as the overall contempt with which sex offenders are often viewed, it might be easy to assume that the North Carolina courts should find the search to be reasonable.  Don’t be lulled by the opprobrious nature of Grady’s prior crimes, however.  Based upon the facts in Grady, the ankle bracelet search at issue is premised on a future-looking ongoing search – a search that is conducted in the absence of probable cause, or even reasonable suspicion, that a crime will be committed.  If this search is upheld as reasonable, it opens the door to attachment of devices and monitoring in countless other situations.