Chicago Daily Law Bulletin
September 10, 2010 Volume: 156 Issue: 177
Technology and its impact on the Fourth Amendment
Criminal Procedure

By Timothy P. O’Neill

O’Neill is a professor of law at The John Marshall Law School in Chicago. Readers are invited to visit his Web log and archives at http://www.jmls.edu/oneill.
Let’s set the Wayback Machine to 1983. You are in a law school classroom and are discussing a brand new U.S. Supreme Court case, U.S. v. Knotts, 460 U.S. 276 (1983). The professor says, “This case holds that police use of a beeper to track a suspect’s car to a drug lab is not a search under the Fourth Amendment. In order for police activity to constitute a search, it must intrude on the person’s reasonable expectation of privacy. Here the car was always on public streets; theoretically, any person could have viewed the suspect’s movements. Use of the beeper only aided the officer’s ability to track those public movements. Because the police use of the beeper was not a search, the officer did not need either a warrant or probable cause to use it.”
The professor then goes on. “But let’s imagine in the distant future that technology has given police a device they can use to track a car’s movements 24 hours a day and they use it for an entire month to track a suspect. Could you argue that this is qualitatively different from the discrete trip in Knotts and that this is a search? Or should Knotts control?”
Obviously, the “distant future” is now. Surveillance techniques are more sophisticated than anyone could have imagined 30 years ago. Predictably, courts have recently split on whether the extended use of a global positioning system (GPS) device constitutes a search under the Fourth Amendment.
The latest court to face the issue was the U.S. Court of Appeals for the D.C. Circuit in U.S. v. Maynard, 2010 U.S. App. LEXIS 16417, decided Aug. 6. Without either a warrant or probable cause, the police used a GPS device to track Maynard’s car 24/7 for 28 days. Relying on Knotts, the government argued that no search occurred because Maynard had no reasonable expectation of privacy as to his movements on public streets.
However, the D.C. Circuit rejected this view of what constitutes a “reasonable expectation of privacy” and held for the defense. In doing so, it distinguished Knotts in two ways: According to the court, Maynard had neither actually nor constructively exposed his movements to the public. Therefore, Maynard had retained a “reasonable expectation of privacy” over his actions.
First, it held that unlike the single discrete trip in Knotts, “the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil.” Second, he did not even constructively expose his movements to the public because a reasonable person does not expect that anyone is monitoring and recording his every move over the course of four weeks; rather, he reasonably expects each of these movements to remain “disconnected and anonymous.” Thus, the D.C. Circuit concluded that the police engaged in a search under the Fourth Amendment.
But the 9th Circuit took a contrary view in U.S. v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010). Relying on Knotts, the court held that even an extended use by the police of a GPS device on a defendant’s car revealed only publicly observable behavior, and thus the police did not infringe on any reasonable expectation of privacy. Both the 7th and the 8th circuits have come to similar conclusions. U.S. v. Garcia, 474 F.3d 994 (7th Cir. 2007); U.S. v. Marquez, 605 F.3d 604 (8th Cir. 2010).
The defendant’s petition for rehearing in Pineda-Moreno was subsequently denied, but not without a stinging dissent from the denial filed by Chief Judge Alex Kozinski and joined by four other judges. 2010 U.S. App. LEXIS 16708. Describing “personal privacy” as a “distant memory,” the dissent bluntly declared that “1984 may have come a bit later than predicted, but it’s here at last.” Continuing the Orwellian allusions, the dissent concluded by labeling the police activity in this case as “creepy and un-American. … Someday, soon, we may wake up and find we’re living in Oceania.”
This sharp division of federal courts on such an important issue has attracted the attention of mainstream media. See “Judges Divided Over Rising GPS Surveillance,” The New York Times, Aug. 14, 2010, A10. It is certainly an issue ripe for U.S. Supreme Court review.
So why the division of authority?
I blame the U.S. Supreme Court for making a doctrinal wrong-turn more than 30 years ago in its definition of what constitutes a “search” under the Fourth Amendment.
In 1967, the Warren Court rejected the old “physical trespass” test for determining whether the police conducted a search under the Fourth Amendment. Instead, in Katz v. U.S. the court held that police activity could constitute a search even without a physical trespass as long as it infringed on a person’s reasonable expectation of privacy. 389 U.S. 347 (1967). The Katz rule was meant to provide a more flexible standard for determining when police activity constituted a search. For example, placing a listening device on the top of a phone booth to hear the conversation going on inside can still be considered a search even though there is no physical penetration or trespass of the booth itself.
The problem with the “reasonable expectation of privacy” test is that it focuses exclusively on the person’s expectation and does not consider how egregious the police conduct is deemed by society as a whole.
Here’s one example. In 1988, the U.S. Supreme Court decided that police could go through garbage left for pickup outside a person’s home without a warrant or probable cause. California v. Greenwood, 486 U.S. 35 (1988). The Court reasoned that a person should know that the garbage is readily accessible by animals, children or scavengers. Thus, since there is no “reasonable expectation of privacy” over the garbage, police are not conducting a “search” when they look through it without a warrant or probable cause.
Some state courts have found the court’s reasoning to be a string of non sequiturs. Should a person’s acceptance of the risk that a raccoon may go through his garbage automatically mean that he must also accept the risk that the local police may intentionally examine it without a warrant or probable cause? These state courts have criticized Greenwood for focusing solely on the person’s expectation of privacy and completely ignoring society’s view of the propriety of the police conduct.
And this is why the Indiana Supreme Court rejected Greenwood in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005). Rather than focusing solely on the home owner’s expectations regarding his garbage, the Indiana court directed its attention to the propriety of the police behavior. The court pithily declared, “Hoosiers are not entirely comfortable with the idea of police officers casually rummaging through trash left at curbside.”
In other words, police officers in Indiana are held to a higher standard of accountability than the ordinary raccoon.
There is a growing body of academic literature calling for a new test for what constitutes a search under the Fourth Amendment. See, e.g., Daniel J. Solove, “Fourth Amendment Pragmatism,” __ Boston College Law Review __ (2010) (forthcoming); Jed Rubenfeld, “The End of Privacy,” 61 Stanford Law Review 101 (2008); Timothy P. O’Neill, “Beyond Privacy, Beyond Probable Cause, Beyond the Fourth Amendment: New Strategies for Fighting Pretext Arrests,” 69 University of Colorado Law Review 693 (1998). In Daniel Solove’s words “The focus should not be on which government activities invade privacy; it should be on which government activities should be regulated.”
The GPS issue is merely the first in what promises to be a long line of cases dealing with the Fourth Amendment implications of new technology. Defense lawyers must be prepared to look beyond mere “privacy” concerns when arguing these issues.

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Gershowitz on Passwords, Cell Phones, and Search Incident to Arrest

Adam M. Gershowitz (University of Houston Law Center) has posted Password Protected? Can a Password Save Your Cell Phone from the Search Incident to Arrest Doctrine? (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:
Over the last few years, dozens of courts have authorized police to conduct warrantless searches of cell phones when arresting individuals. Under the so-called search incident to arrest doctrine, police are free to search text messages, call histories, photos, voicemails, and a host of other data if they arrest an individual and remove a cell phone from his pocket. Given that courts have offered little protection against cell phone searches, this article explores whether individuals can protect themselves by password protecting their phones. The article concludes, unfortunately, that password protecting a cell phone offers minimal legal protection. In conducting a search incident to arrest, police may attempt to hack or bypass a password. Because cell phones are often found in arrestees’ pockets, police may take the phones to the police station where computer savvy officers will have the time and technology to unlock the phone’s contents. And if police are themselves unable to decipher the password, they may request or even demand that an arrestee turn over his password without any significant risk of the evidence on the phone being suppressed under the Miranda doctrine or as a Fifth Amendment violation. In short, while password protecting a cell phone may make it more challenging for police to find evidence, the password itself offers very little legal protection. Accordingly, legislative or judicial action is needed to narrow the search incident to arrest doctrine with respect to cell phones.