SSRN: Ending the Zero-Sum Game: How to Increase the Productivity of the Fourth Amendment by Ric Simmons IN Harvard Journal of Law and Public Policy, Vol. 36: Abstract:

Every criminal procedure student learns on the first day of class that Fourth Amendment policy represents a zero-sum game: a constant struggle between the individual privacy of citizens and the needs of law enforcement. In reality, however, the “competition” between law enforcement and criminals does not have to be zero-sum. In order to see why, we need to see the criminal justice system not as a competition, but instead as an industry. This article applies economic principles to try to find ways to increase the efficiency of the criminal justice system — that is, to maximize output while minimizing costs. The costs to the system are both the intangible loss of privacy that is associated with surveillance, as well as the tangible, actual monetary cost incurred by law enforcement organizations to undertake the surveillance. The output that we are seeking is crime control, or more specifically in the Fourth Amendment context, the identification of those who are guilty of a crime and collection of evidence which can be used to demonstrate their guilt. Roughly speaking, the more money we spend, and/or the more willing we are to infringe on our own freedoms, the more output we receive in terms of identifying the guilty and recovering incriminating evidence.

However, there are two ways that this industry could in fact be a positive-sum game. First, advances in technologies can increase the effectiveness of surveillance in catching criminals without reducing the privacy rights of ordinary citizens — that is, it is possible to increase the output without increasing the cost. And second, changing norms and attitudes may decrease the value of certain kinds of privacy to individuals, causing the cost of certain types of surveillance to decrease. This can work in the other direction as well: when criminals, rather than police, take advantage of technological advances, the output of the system will decrease even if costs are held constant. Likewise, societal norms could change to make certain types of privacy more valuable, thus increasing the cost to the system. In these situations, the criminal justice system becomes a negative sum game. Once we have identified the productivity of different forms of surveillance, we can take steps to encourage more productive types of surveillance and discourage the less productive ones.

The Article first sketches out a basic formula for analyzing the productivity of different surveillance methods by measuring the cost of the inputs and the benefits of the outputs. It then applies this formula to different methods of surveillance to see how certain methods of surveillance are more productive than others, searches for ways to increase the productivity of surveillance generally. Finally, the Article offers some suggestions for changing the way we regulate surveillance techniques in order to maximize the efficiency of the process.

Atlantic.com: This Week’s Senate Scandal: Scorn for the 4th Amendment by Conor Friedersdor:

I haven’t passed the bar, but I know a little bit about the 4th Amendment. Have you read it lately? “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” it states in plain English, “and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

That’s all of it.

The landline in your house? The government needs a warrant to tap it. The letters in your mailbox? The government needs a warrant to read ’em. It’s like the Framers said: probable cause is required.

Yet a text or an email, even one sent from your bed, is treated differently — it’s afforded much less protection from government snoops, even though we’re increasingly going all digital in our communication.

Why?

Senator Rand Paul raised that question Thursday on the Senate floor. “We became lazy and haphazard in our vigilance,” he told his colleagues during a debate about government surveillance. ….

Salon.com: Senate FISA vote inspiring display of bipartisan commitment to ignoring Fourth Amendment | Fiscal calamity? Who cares! Congress shows that they can still band together and vote for horrible things, by Alex Pareene:

Congressional dysfunction and extremism may yet plunge the nation into an entirely avoidable recession, but at least Americans will likely be able to sleep at night secure in the knowledge that our lawmakers at least sprang into action, at the last possible minute, to preserve the government’s right to constantly spy on everyone without telling anyone about it.

In all likelihood, the Senate will vote today to reauthorize the FISA Amendments Act for a few years, just before it was scheduled to expire. The House reauthorized it all the way back in September, but the world’s most deliberative body likes to take its time (plus Ron Wyden placed a hold on the bill until Senate leaders agreed to at least have a debate on proposed amendments to the Amendments).

TheHill.com: Senate approves bill to reauthorize foreign surveillance programs by Ramsey Cox :

The Senate on Friday approved a bill reauthorizing the Foreign Intelligence Surveillance Act (FISA) in a 73-23 vote.

The bill will extend for five years the ability of U.S. intelligence authorities to conduct surveillance of suspected terrorists overseas without first getting permission from a court.

Law.com: Toyota settlement shines light on agency’s proposed ‘black box’ rule by Jenna Greene:

In the wake of Toyota Motor Corp.’s estimated $1.3 billion settlement involving claims of unintended acceleration, the National Highway Traffic Safety Administration continues to push for a rule that would require manufacturers to install “black boxes” in all new cars to record accident data.

The NHTSA points to its investigation of Toyota claims as one justification for the rule, which has triggered concerns about privacy, ownership of recorder data, and how the data will be used.

Cato.org: Don’t Renters Have Fourth Amendment Rights? by Ilya Shapiro:

A person’s home is his castle and thus affords certain protections and immunities—including the right to exclude unwanted visitors—that apply whether you own or rent. Unfortunately, ordinances authorizing general administrative searches of rental properties have been increasingly adopted by local authorities with little protection for property rights or privacy interests.

These inspections cover the whole of the buildings and all of the activity that occurs within, opening every aspect of people’s lives to the government: political and religious affiliations, intimate relationships, and even all those Justin Bieber posters and Fifty Shades of Gray books you hide when people come over. They take place even if both the landlord and tenant believe them not to be necessary!

Wired.com: Feds Requiring ‘Black Boxes’ in All Motor Vehicles by David Kravets:

Federal regulators are proposing that new automobiles sold in the United States after September 2014 come equipped with black boxes, so-called “event data recorders” that chronicle everything from how fast a vehicle was traveling, the number of passengers and even a car’s location.

While many automakers have voluntarily installed the devices already, the National Transportation Safety Agency wants to hear your comments by February 11 on its proposal mandating them in all vehicles. Congress has empowered the agency to set motor-vehicle-safety rules.

Clearly, regulators’ intentions are about safety, as the devices would trigger — for about 30 seconds — during so-called “events” such as during sudden breaking, acceleration, swerving or other types of driving that might lead to an accident. The data, which can either be downloaded remotely or by a physical connection, depending upon a vehicle’s model, is to be used by manufacturers and regulators “primarily for the purpose of post-crash assessment of vehicle safety system performance,” according to an announcement in the Federal Register. (.pdf)

But privacy advocates are raising the alarm bells, and want the agency to require data safeguards, including demands that data be anonymized, and to prohibit the marketing of it.

Atlantic.com: Senate Drops Effort to Prevent Warrantless Email Monitoring by Rebecca J. Rosen:

As the week wound down before the holiday break, the senate sent President Obama a bill that gives sites like Netflix the option of allowing users to automatically share their viewing history with their social networks on Facebook.

This was relatively uncontroversial, making video sites no different from other services (like Spotify, say) that already have this kind of easy sharing. In fact, the prohibition only existed in the first place because Congress singled out video-rental history as particularly private following an incident in 1987 when then-Supreme Court nominee Robert Bork’s video-rental history was leaked to the Washington City Paper.

But the bill was only so uncontroversial because the Senate stripped it of a much more significant proposal: amendments offered by Senator Patrick Leahy of Vermont, which would have required a warrant for law-enforcement agents to access the contents or metadata of emails that have been stored remotely for more than 180 days. Current law only requires a warrant for obtaining more recent communications. Once emails are older, government agents can obtain them with mere subpoenas, which require only a demonstration that the information would be useful to an ongoing investigation.

NTY Editorial: The Dawning of Domestic Drones; The drones are coming to a neighborhood near you:

The unmanned aircraft that most people associate with hunting terrorists and striking targets in Pakistan are on the brink of evolving into a big domestic industry. It is not a question of whether drones will appear in the skies above the United States but how soon.

Congress has ordered the Federal Aviation Administration to quickly select six domestic sites to test the safety of drones, which can vary in size from remote-controlled planes as big as jetliners to camera-toting hoverers called Nano Hummingbirds that weigh 19 grams.

The drone go-ahead, signed in February by President Obama in the F.A.A. reauthorization law, envisions a $5 billion-plus industry of camera drones being used for all sorts of purposes from real estate advertising to crop dusting to environmental monitoring and police work.

Defendant was suspected of robbing casino patrons after they won in Lawrenceburg, IN and drove to Cincinnati. After a lengthy investigation using GPS and recording telephone conversations, the police moved in and arrested defendant in his pickup truck. The police had probable cause to arrest defendant and the vehicle, left without a possible driver, was subject to inventory when it was towed in. The inventory was proper in all respects and not a ruse for a criminal investigation. State v. Ojile, 2012 Ohio 6015, 2012 Ohio App. LEXIS 5223 (1st Dist. December 21, 2012).* [If they had PC to arrest, they almost certainly had it to search the vehicle for evidence, weapons, or proceeds of crime because it was used in more than one of the robberies. Instead of taking the easiest to prove, the state apparently wanted to rely on inventory which has more for it to prove to show reasonableness.]

The Quarles public safety exception applies to a meth lab in a backpack voluntarily revealed by defendant and then with follow up questions. United States v. Noonan, 2012 U.S. Dist. LEXIS 181190 (N.D. Iowa December 20, 2012).

Wired.com: The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say) by James Bamford

The spring air in the small, sand-dusted town has a soft haze to it, and clumps of green-gray sagebrush rustle in the breeze. Bluffdale sits in a bowl-shaped valley in the shadow of Utah’s Wasatch Range to the east and the Oquirrh Mountains to the west. It’s the heart of Mormon country, where religious pioneers first arrived more than 160 years ago. They came to escape the rest of the world, to understand the mysterious words sent down from their god as revealed on buried golden plates, and to practice what has become known as “the principle,” marriage to multiple wives.

. . .

But new pioneers have quietly begun moving into the area, secretive outsiders who say little and keep to themselves. Like the pious polygamists, they are focused on deciphering cryptic messages that only they have the power to understand. Just off Beef Hollow Road, less than a mile from brethren headquarters, thousands of hard-hatted construction workers in sweat-soaked T-shirts are laying the groundwork for the newcomers’ own temple and archive, a massive complex so large that it necessitated expanding the town’s boundaries. Once built, it will be more than five times the size of the US Capitol.

Rather than Bibles, prophets, and worshippers, this temple will be filled with servers, computer intelligence experts, and armed guards. And instead of listening for words flowing down from heaven, these newcomers will be secretly capturing, storing, and analyzing vast quantities of words and images hurtling through the world’s telecommunications networks. In the little town of Bluffdale, Big Love and Big Brother have become uneasy neighbors.

Defendant showed standing from staying at his sister’s apartment a lot. He kept clothes and toiletries there, and he had a key and could come and go as he pleased. Defendant saw an unmarked police car and pulled at his pants indicating a gun in his waistband. He also ducked behind a car for a few seconds. Officers pulled to him and addressed him, and he had a bulge in his coat. At this point, officers had more than reasonable suspicion. Then defendant fled into a building , and the officers gave chase. The entry was with exigent circumstances. United States v. McGregor, 2012 U.S. Dist. LEXIS 181318 (N.D. Cal. December 21, 2012):

Defendant bolted through the front door as if it were unlocked or slightly ajar. He did not use a key. The officers did not know defendant, or whether he had a connection to the apartment. As far as the officers could tell, defendant had bolted into a random, close-by home of a stranger to seek escape from the officers, hide contraband, or endanger the occupants. Based on the foregoing information known to the officers, it was objectively reasonable for the officers to conclude that defendant’s frenzied escape into the apartment posed a random and serious risk to the safety of the occupants or the officers. There was no particular indication that defendant lived there or knew the occupants. He did not say, for example, “Go away. This is my home.” He did not enter using a key. Nor did the sister, who was standing inside near the door communicate in some manner to the police that defendant belonged there.

The opinion doesn’t use the phrase “hot pursuit,” but that’s what it is.

CSLI information is not protected by the probable cause requirement of the Fourth Amendment. The government sought the information by court order and the USMJ denied it, and the government appealed to the District Judge who granted it. CLSI information is subject to the Smith v. Maryland no reasonable expectation of privacy standard. In the Matter of the Application of the United States of America for an Order Authorizing Disclosure of Historical Cell Site Information for Telephone Number [Text Redacted by the Court], 2011 U.S. Dist. LEXIS 156744 (D. D.C. October 3, 2011):

This Court agrees with the government that the text of the SCA permits the government to apply for compelled disclosure of CSLI records relating to a customer’s past use of a cellular telephone company’s phone services without meeting the probable cause requirement for a warrant. See, e.g., Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208, 66 S. Ct. 494, 90 L. Ed. 614 (1946) (holding that the probable cause requirement does not apply to compulsory process).

The Court of Appeals’ opinion in United States v. Maynard does not compel a contrary result. The Court in Maynard determined that law enforcement installation of a GPS tracking device on a suspect’s car that continuously registers the car’s location constitutes a “search” under the Fourth Amendment. United States v. Maynard, 615 F.3d 544, 555-56, 392 U.S. App. D.C. 291 (D.C. Cir. 2010). In so holding, the Court did not address compelled disclosure under Section 2703(d) -indeed, the law enforcement officers in Maynard sought no official process sanctioning their conduct before installing the GPS device at issue. See id. at 555. Maynard thus does not bear on the relevant evidentiary standard under Section 2703(d).

In finding that Maynard applied to this case, Magistrate Judge Facciola presumably concluded that obtaining CSLI is tantamount to the sort of continuous GPS surveillance at issue in Maynard. If the analogy holds, collection of historical CSLI may constitute a “search” that requires a warrant under the Fourth Amendment, the SCA notwithstanding. Cf. In re Application of the United States, 620 F.3d at 308-09 (describing magistrate judge’s opinion comparing collection of historical CSLI to installation of a tracking device); In re United States Order, 736 F. Supp. 2d 578, 595 & n.6 (E.D.N.Y. 2010) (arguing that “[s]tatutory authority … is not sufficient if such authority purports to allow, without a showing of probable cause, a search or seizure that must be considered unreasonable under the Fourth Amendment”).

Unsealed and posted to Lexis this week.

NYT Editorial: Sneaky Apps That Track Cellphones:

A perversion of smartphone technology called “stalking apps” — precise, secretive trackings of the movements of cellphone users — is increasingly a matter of national concern, particularly for domestic abuse victims. No less threatening is the routine monitoring of children’s locales and phone habits for commercial purposes while parents are kept in the dark. Stealth apps even stoop to cyber-leering through the now notorious app called Girls Around Me, which allows men to search out women, unbeknown to them, by cross-matching GPS technology with information and photo sites like Facebook.

With these abuses proliferating, the Senate Judiciary Committee this month took a big step to protect the privacy of all cellphone users and close legal loopholes that enable stalking apps. The committee approved a worthy measure sponsored by Senator Al Franken, Democrat of Minnesota, that for the first time would require cellphone companies to obtain a user’s permission to collect location data and sell it or share it with third parties. It also would flatly outlaw creation of stalking apps, applying criminal and civil penalties.

Defendant refused to stop when the patrol car’s lights and siren came on, and that was not a seizure until he was actually stopped. His flight was reasonable suspicion, and the movement of his hands in flight added to it. United States v. Rhone, 2012 U.S. Dist. LEXIS 181135 (E.D. Mo. September 19, 2012):

The Supreme Court has held that presence in an area with a high rate of crime with unprovoked flight can satisfy the reasonable suspicion standard for a Terry stop. Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Here, prior to the seizure and search of defendant, the officers found him in the Jeff Vanderlou area, an area with a high rate of crime, and defendant fled from the officers with no provocation. Additionally, while in pursuit of defendant, Officer Anderson observed defendant’s hands moving around his jacket pocket. See United States v. Cornelius, 391 F.3d 965, 968 (8th Cir. 2004) (placing hands in jacket pocket and failure to remove hands upon direction by an officer sufficiently justifies a frisk); United States v. Davis, 202 F.3d 1060, 1063 (8th Cir. 2000) (placing hands in jacket pocket and moving to officer’s backside upon witnessing the frisk of a companion sufficiently justifies a frisk); see also United States v. Roggeman, 279 F.3d 573, 579 (2002) (bulge in the clothing alone can establish a reasonable suspicion).

Defendant was in pretrial detention for three years, and both sides were responsible for delay, the government superceding the indictment multiple times, and the defendant for requesting extensions for filing pretrial motions, and only recently got the search warrant materials from the government. The defendant is ordered released on conditions, including cash deposit, third party custodians, drug testing, and searches of his home by USPO. [The opinion doesn’t tell us whether the defendant offered this condition. A home search as a condition of release is extremely hard to justify, and the court makes no effort to do so.] United States v. Rodriguez, 2012 U.S. Dist. LEXIS 181111 (W.D. N.Y. December 21, 2012).

The discrepancies noted by the defense between the search warrant affidavit and the discovery were not material enough to justify an evidentiary hearing. United States v. Dixon, 2012 U.S. Dist. LEXIS 180431 (N.D. Ohio December 17, 2012).*

Officers conducted a protective sweep and saw ammunition in plain view. They also had enough to seek a search warrant, and they did, including the reference to the ammunition. There was a misleading paragraph in the affidavit. Excising it and the reference to the ammunition, there was still probable cause for issuance of the search warrant, and the motion to suppress is denied. United States v. Torres, 2012 U.S. Dist. LEXIS 179774 (E.D. Pa. December 19, 2012).*

Defendant’s 2255 claim that his criminal defense lawyer failed to object to the search of the car he was in was vague and conclusory. From the court’s own review of the record, defendant likely lacked standing to challenge the search of the car which was with probable cause based on the testimony at trial. Therefore, the lawyer couldn’t be ineffective. United States v. McIntyre, 2012 U.S. Dist. LEXIS 179957 (D. Kan. December 17, 2012).*

Defense counsel fully argued the Fourth Amendment in the District Court and then appealed it to the Fifth Circuit, so there he is barred from relitigating it by collateral estoppel. Castille v. United States, 2012 U.S. Dist. LEXIS 180871 (W.D. Tex. December 20, 2012).

The police made a warrantless entry based on speculation of exigency. Their knowledge of actions in the home showed nothing out of the ordinary, too. State v. Tate, 2012 Tenn. Crim. App. LEXIS 1035 (December 17, 2012).

“Upon consideration of all which, the undersigned finds that from a totality of the evidence presented to Magistrate Elbon, there was ‘a fair probability that contraband or evidence of a crime’ would be found in the residence and attached building.” Accordingly, the SW affidavit was not so lacking that the good faith exception did not apply. United States v. Collins, 2012 U.S. Dist. LEXIS 178068 (N.D. W.Va. December 17, 2012).*

The occupants were suspected of being involved in a robbery from information from a CI. Their stop was for a loud exhaust, and the occupants had differing explanations of where they were going, they were nervous, and one had a knife. One was a convicted felon, and that was probable cause to search the glove compartment for a weapon. United States v. Hendrickson, 2012 U.S. Dist. LEXIS 178167 (D. Vt. December 17, 2012).*

In another Jones on remand case, the district court held that suppressing the GPS data would not lead to suppression of the police determining that 9509 Potomac Drive was the stash house because they figured that out the day before the GPS was installed on his Jeep. United States v. Jones, 1:05-cr-00386 (D. D.C. December 20, 2012):

5. Here, the Court concludes that defendant has not met his burden of establishing that, “but for the illegal [GPS search], the officers likely would not have discovered [the stash house and the evidence contained therein].” Holmes, 505 F.3d at 1292. To the contrary, on September 26, 2005, a day before the GPS device was even attached to Jones’ car, law enforcement officials had determined that 9508 Potomac Drive was the likely stash house based on: (1) the GPS coordinates from the “ping” to the 678 cell phone; (2) property records confirming that only 9508 and 9509 Potomac Drive were not owner-occupied; and (3) the physical appearance of 9508 Potomac Drive as compared to the other houses on the street. (See supra Findings of Fact ¶¶ 7-13.) They had also initiated the process of installing a stationary camera at 9509 Potomac Drive before they began accessing data from the GPS device. (See supra Findings of Fact ¶¶ 15-17.)

6. The Court further concludes that even if defendant could demonstrate a causal nexus between the GPS data and the location of the stash house, the evidence would be admissible under the inevitable discovery doctrine. After the GPS device was installed on Jones’ Jeep, law enforcement officers continued to obtain information from independent—and lawful—sources that confirmed that 9508 Potomac Drive was in fact the stash house. For example, they continued to monitor the Title III wiretap and on October 4, 2005, they observed Jones and his associate Roel Bermea driving to and from the Potomac Drive area. (See supra Findings of Fact ¶ 19.) They also succeeded in installing a stationary camera at 9509 Potomac Drive and obtained visual confirmation that Jones and Bermea frequented the 9508 address. (See supra Findings of Fact ¶ 20.) Thus, even if the Court were not convinced that law enforcement officers had in fact identified 9508 Potomac Drive as the stash house prior to the installation of the GPS device on defendant’s Jeep, the government has met its burden of showing that, absent the constitutional violation, it would inevitably have confirmed the location of the stash house using entirely lawful.

h/t reader. Also, many of the D.D.C. opinions are available on its website, but this one isn’t yet.

NYLJ.com: Ruling Revives Claims Against City Over Stop-and-Frisk Data by John Caher:

Information gleaned from stop-and-frisk targets must be sealed and cannot be used for subsequent police investigations, an appellate panel has held while finding that individuals whose information was disclosed or utilized have a private right of action against New York City.

In an opinion addressing the ongoing debate over the New York City Police Department’s stop-and-frisk policies, a unanimous panel of the Appellate Division, First Department, yesterday reversed a trial court and delivered a victory to civil rights activists who have criticized and legally challenged police procedures.

The panel in an unsigned opinion flatly rejected the city’s position and, significantly, held that targets need not await a “readily apparent prospective injury” before seeking relief under a state privacy law.

NYT: Suit on Police Stops Is Reinstated by Joseph Goldstein:

In a further blow to the Police Department’s database of stop-and-frisk interactions, a state appellate court on Thursday reinstated a lawsuit challenging the police’s authority to retain information about people who were arrested after a street stop, but later cleared of criminal charges.

A general consent to search a vehicle for “weapons, drugs, or money” permitted the officers to use tools to take the dashboard apart and find a hidden compartment. It was expected that compartments would be searched, and that had to include hidden compartments. United States v. Locke, 2012 U.S. Dist. LEXIS 179425 (E.D. Wis. October 9, 2012) adopted 2012 U.S. Dist. LEXIS 179420 (E.D. Wis. December 19, 2012):

Here, Trooper Taylor asked Locke whether he had any weapons, drugs, or money in the vehicle, and Locke answered “no.” Trooper Taylor specifically asked if he could search Locke’s Expedition, and Locke answered “yes.” So, Locke was well aware that Trooper Taylor was searching for weapons, drugs, and money. While suspects may limit the scope of their consent, Locke placed no limit on the extent of the search. Thus, a reasonable person in the officer’s position would have understood that, by consenting to search the Expedition and all of its contents, Locke agreed to permit a search of any compartments or containers that could contain contraband, including the hidden compartment that was ultimately discovered.

Locke argues, however, that Trooper Taylor’s search exceeded the scope of his consent because he used tools to access the hidden compartment. Locke cites no case law to support his argument. Indeed, and quite to the contrary, cases suggest that, in the absence of intentional damage “to the places or things to be searched,” using tools to access hidden compartments is not per se unreasonable. See Saucedo, 688 F.3d at 866-67. In Saucedo, the court upheld as reasonable an officer’s use of a flashlight and screwdriver to look behind a TV, unscrew the molding, and remove the hidden compartment from an alcove. See id. at 866. Additionally, in United States v. Torres, 32 F.3d 225 (7th Cir. 1994), an officer used a screwdriver to remove six screws that secured the cover of a wooden compartment in a trailer. The court found it to be objectively reasonable for the officer to believe that the scope of consent allowed him to open the compartment in such a manner. Id. at 231-32.

Locke makes no claim that Trooper Taylor, or any other officer on the scene, intentionally damaged the Expedition or any personal property inside. At one point, Locke accused Trooper Taylor of “tearing the truck up.” However, it appears Locke’s concern stemmed from a general rummaging of contents, as opposed to destruction of the contents in the vehicle. Further, Trooper Taylor assured Locke that the officers would put everything back the way it was. …