The Hawai’i Supreme Court finds the state constitution protects against disclosure of third party information without a search warrant: “This rule [Miller and Smith] is untenable in a technological age where in the ordinary course of life, individuals will of necessity have disclosed a boundless amount of information to third parties.” The court also quoted Sotomayor’s concurrence in Jones with approval:
More recently, it has been explained that the approach used in Miller and Smith, and previously adopted by this court in Klattenhoff, “is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” United States v. Jones, 132 S. Ct. 945, 957 (Sotomayor, J., concurring). As declared by Justice Sotomayor, “[p]eople disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.” Id.
But, it was ultimately harmless error on the question of guilt because of the wealth of other information putting Walton at the scene. Here, two men robbed a cab driver and stabbed him. Left behind in the cab was a backpack with a GNC card that was traced to Walton. The backpack itself was searched with a warrant despite being left behind in the cab. There was no warrant for information from GNC, but it was arguable that the search warrant allowed that too. State v. Walton, 2014 Haw. LEXIS 79 (February 14, 2014). This is three of five members of the court, starting at page 60 of the .pdf file:
PART II: MOTION TO SUPPRESS, OPINION OF THE COURT BY ACOBA, J., WITH WHOM McKENNA AND POLLACK, J., JOIN
Article 1, section 7 of the Hawai’i Constitution [which reads substantially similar to the Fourth Amendment] protects all information in which individuals have a legitimate expectation of privacy. Accordingly, the bare assertion that information was disclosed to a third party does not place such information outside the parameters of article 1, section 7. Rather, the protection afforded to information disclosed to a third party must be determined by examining whether an individual reasonably expected such information to remain private as to others and whether society would view such expectation as reasonable. Thus, we must respectfully disagree with the holding of the Intermediate Court of Appeals (ICA) that article 1, section 7 “does not apply to basic information revealed to a third party, ‘even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.'” State v. Walton, No. CAAP-11-0000667, 2013 WL 2190159, at *5 (App. May 21, 2013) (mem.) (quoting United States v. Miller, 425 U.S. 435, 443 (1976)). This rule is untenable in a technological age where in the ordinary course of life, individuals will of necessity have disclosed a boundless amount of information to third parties.
. . .
More recently, it has been explained that the approach used in Miller and Smith, and previously adopted by this court in Klattenhoff, “is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” United States v. Jones, 132 S. Ct. 945, 957 (Sotomayor, J., concurring). As declared by Justice Sotomayor, “[p]eople disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.” Id.
In Jones, the use of a GPS attached to the underside of a vehicle to gather 2000 pages of information about the defendant 24 led Justice Sotomayor to suggest that “some unique aspects of GPS surveillance … will require particular attention” inasmuch as “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Id. at 955. Moreover, “because GPS monitoring is cheap in comparison to conventional surveillance techniques, and by design, proceeds surreptitiously, it evades the ordinary checks that constrain law enforcement practices: limited police resources and community hostility.” Id. (internal quotation marks omitted). In light of the immense amount of information that could be unprotected under the approach of Miller and Smith, Justice Sotomayor concluded that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” Id.
. . .
The rule that an individual has no legitimate expectation of privacy in any information shared with a third party cannot be justified in all situations. As explained by Justice Marshall in Smith, “[p]rivacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.” Smith, 442 U.S. at 749 (Marshall, J., dissenting) (emphasis added) (citations omitted). Hence, Justice Sotomayor stated that it cannot be said that “all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.” Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring).
For example, although individuals share the addresses of each Web site they visit with their internet service provider, it is unlikely that “people would accept without complaint the warrantless disclosure to the Government a list [containing] every Web site they had visited in the last week, month, or year.” Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring). Thus, even when information is disclosed to a third party, individuals may retain an expectation that such information will not be disclosed to others for purposes other than that for which the information had already been revealed.
Moreover, Miller, Smith, and Klattenhoff incorrectly rely on the principle that individuals who convey information to a third party have assumed the risk of that party disclosing the information to the government. In our times individuals may have no reasonable alternative, Smith, 442 U.S. at 750 (Marshall, J., dissenting), but to disclose confidential information to obtain a necessary service. Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring).
The decisions in Miller and Smith, and as adopted by this court in Klattenhoff, are inconsistent with the recognition that article 1, section 7 of the Hawai’i Constitution protects all areas in which an individual possesses a legitimate expectation of privacy.26 Even when information is shared with a third party, an individual may retain a legitimate expectation that such information will not be further disseminated for purposes other than those for which they were disclosed in the first place. Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring); Smith, 442 U.S. at 749 (Marshall, J., dissenting); Miller, 425 U.S. at 449 (Brennan, J., dissenting). Thus, it cannot be said that information disclosed to another person automatically loses the protection it would otherwise receive under the Hawai’i Constitution. Cf. Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring). As Justice Brennan maintained, “the very premise of the cases that foreclose federal remedies constitutes a clear call to state courts to step into the breach. … With federal scrutiny [of individual rights] diminished, state courts must respond by increasing their own.” 27 Brennan, State Constitutions, 90 Harv. L. Rev. at 503.
26 Relatedly, in State v. Detroy, 102 Hawai’i 13, 72 P.2d 485 (2003), this court relied in part on the U.S. Supreme Court’s conclusion in Kyllo v. United States, 533 U.S. 27 (2003), that thermal imagers were “not in general public use,” 533 U.S. at 34, in concluding that the use of thermal imagery was a search that required a warrant. Detroy, 102 Hawai’i at 21, 72 P.3d at 493. Unlike the U.S. Supreme Court, this court noted that “the wide use of a device such as a thermal imager” would not “be determinative of whether an individual’s right to privacy is forfeited,” but that “it may be a factor.” Id. at 22 n.11, 72 P.3d at 494 n.11. However, individuals may retain a reasonable expectation that some searches will not be reasonable even if a technological device is in general public use. Thus, this court’s reliance on the fact that thermal imagers were not widely available in Detroy would warrant reconsideration.
27 Soon and inevitably to come are overflights by drones — will they be too numerous in number to sustain a claim of any expectation of privacy? See Jonathan Olivito, Note, Beyond the Fourth Amendment: Limiting Drone Surveillance Through the Constitutional Right to Informational Privacy, 74 Ohio St. L.J. 669, 687 (2013). Contained within a person’s luggage is not only its contents but an expectation of privacy. Yet, it is permissible for the police to legally ascertain the contents of a suitcase through a sniff by trained dogs of the air around the suitcase, because there is said to be no expectation of privacy in the air containing the odor of marijuana. United States v. Place, 462 U.S.696, 707 (1983). However, the use of a thermal imager in a marijuana-growing investigation to measure the heat emanating from the walls of a house, presumably in the air that might surround a suitcase, is said to violate one’s privacy. Kyllo, 533 U.S. at 37. But a swab of one’s inner cheek to search for “DNA”, is permissible, even if not connected to any crime because on balance the intrusion on a person is not discomforting and identification of an arrestee is a government interest that weighs more heavily, according to Maryland v. King, 133 S. Ct. 1 (2012).
Respectfully, based on the forgoing, the ICA erred in concluding that Walton lost all constitutional protection in his name simply because that information had been previously disclosed to a third party. Walton, 2013 WL 2190159, at *5. Rather, under article 1, section 7 of the Hawai’i Constitution, it must be determined whether Walton held a legitimate expectation that such information would not be shared with others. Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring); Smith, 442 U.S. at 749 (Marshall, J., dissenting); Miller, 425 U.S. at 449 [*98] (Brennan, J., dissenting). In making such a determination, this court should decide whether the individual considered such information to be private, see Miller, 425 U.S. at 449 (Brennan, J., dissenting), whether that information reveals “intimate details of a person’s life,” Smith, 442 U.S. at 748 (Stewart, J., dissenting), whether the individual released the information to a third party to obtain a necessary service, Smith, 442 U.S. at 750 (Marshall, J., dissenting), whether there was no realistic alternative but to disclose the information, id., and the extent to which disclosing such information would jeopardize an individual’s sense of security. Id. If such information is protected by article 1, section 7 of the Hawai’i Constitution, the State is not precluded from seeking to introduce such evidence at trial. Rather, the police simply must obtain a warrant before conducting such searches, thus subjecting the issue to the scrutiny of a neutral disinterested magistrate before a search is conducted. Cf. Katz, 389 U.S. at 357 (“Bypassing a neutral predetermination of the scope of a search leaves individuals secure from Fourth Amendment violations only in the discretion of the police.” (internal quotation marks and citation omitted)).
IV.
Rapid changes in technology have altered our lifestyles, creating a dissonance between a mechanical application of the expectation of privacy test and its core meaning. The last fifty years have witnessed a significant period of change in the law pertaining to criminal procedure. United States Supreme Court and Hawai’i Supreme Court decisions have diverged in the area of constitutional protections against unreasonable searches and seizures. But as noted, the U.S. Supreme Court itself recognized, “state courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution.” Evans, 514 U.S. at 8.
The ascent of state supreme courts’ independence in interpreting their own constitutions to afford more or broader rights to individuals than the national minimum standard established by the Supreme Court, so long as these decisions do not violate the federal constitution or statutes, reflects a “New Federalism.” Brennan, State Constitutions, 90 Harv. L. Rev. at 501. In this context, the co-existence of two constitutions – the federal constitution and the state constitution – in one jurisdiction can result in contrasting outcomes in federal and state court, although arising out of the same or similar factual scenarios, with the concomitant effect on the duties and authority of law enforcement agencies affected by these decisions. See Torres, 125 Hawai’i at 397, 262 P.3d at 1021.
The modification or reformulation of a privacy test is possible, thus, at the state level. It would seem beyond purview that a reasonable person would not expect that disclosure to third parties would, ipso facto, permit government scrutiny or intrusion into otherwise protected privacy zones without at least some safeguards inhering in the checks among the separate branches of government. An expectation of privacy, even though extended to matters exposed to third persons, would be viewed as reasonable by society, where such exposure is inevitable and inescapable in the conduct of the necessary affairs of life. The alternative is to countenance the inexorable diminishment of personal privacy and the substantial risk of privacy zones disappearing altogether. Cf. Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (holding that “specific guarantees in the Bill of Rights have penumbras, formed by emanations [*104] from those guarantees that help give them life and substance,” and that “[v]arious [constitutional] guarantees create zones of privacy,” such as the Fourth Amendment’s “protection against all governmental invasions of the sanctity of a man’s home and the privacies of life” (internal quotation marks omitted)).
The contours of an expectation of privacy in the context of disclosure to third persons would be shaped on a case-by-case basis as guided by the core values of personal dignity and security grounded in the privacy right. Considerations of purpose, history, logic, and precedent — accepted tools of constitutional construction — would be pertinent. As explained by Justice Brandeis, “[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
V.
The majority’s belief that there is no expectation of privacy in a name, under the facts, may be too broad a construct. One’s identity is a gateway to information collected by third persons — some collection occurring even without a person’s knowledge; only context can determine whether the disclosure of one’s name would be the key that unlocks the door to a protected zone of privacy. For example, in Hiibel v. Sixth Judicial Dist. Court of Nevada, Humbolt County, 542 U.S. 177 (2004), Justice Stevens rejected the Supreme Court’s conclusion that the Fifth Amendment right against self incrimination did not extend to an individual’s name.30 See 542 U.S. at 195 (Stevens, J., dissenting). Justice Stevens believed that it was “clear that the disclosure of [the defendant’s] identity is protected” by the Fifth Amendment because “[a] person’s identity obviously bears informational and incriminating worth, ‘even if the name itself is not inculpatory.'” Id. at 196 (internal brackets omitted) (quoting United States v. Hubbell, 530 U.S. 27, 38 (2000)). Additionally, “[a] name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases.” Id.
However, it is unnecessary to decide whether, under the circumstances presented here, Walton possessed a legitimate expectation of privacy in his name because the introduction of that evidence at trial was plainly harmless. In determining whether an error is harmless, this court considers whether “there is a reasonable possibility that error might have contributed to conviction.” State v. Machado, 109 Hawai’i 445, 452-53, 127 P.3d 941, 948-49 (2006) (citations and internal quotation marks omitted). In the instant case, the association of Walton’s name with the GNC card served only to establish his presence at the crime scene. However, that fact was also established by a wealth of other evidence presented at trial. Thus, the introduction of the information obtained from the inquiry to GNC regarding the ownership of the GNC card was harmless.
Daring yes; but regretfully unnecessary to the decision because of harmless error. But, Hawai’i wants it known that third party information is protected henchforth, and a search warrant is required to get access to it.
