New draft article by Orin Kerr. Opening paragraph of abstract:
- This Article considers whether government agents can conduct searches or seizures to enforce a different government’s law. For example, can federal officers make stops based on state traffic violations? Can state police search for evidence of federal immigration crimes? Lower courts are deeply divided on the answers. The Supreme Court’s decisions offer little useful guidance because they rest on doctrinal assumptions that the Court has since squarely rejected. The answer to a fundamental question of Fourth Amendment law – who can enforce what law – is remarkably unclear.
Applying the right mental state to the material elements: a quick summary and something you probably didn't know
Recently, I have given a number of presentations on the steps any defense lawyer should take in determining what mental state applied to which material elements. One anonymous critic wasn't impressed, but for a very practical reason: do jurors really care whether certain crimes have to be committed knowingly, recklessly or negligently? They want to know, "did the guy do it"?
I think it depends on the case. Applying criminal negligence to $ value in a theft or criminal mischief may not matter most of the time, but in the right case -- a victim claiming $800 sunglasses in her stolen purse, plus a $400 alligator-skin wallet, to give an extreme example -- it could easily result in a conviction for a less serious charge.
But I think the question misses the big picture. One, defense attorneys should always make sure the state proves its case, and we aren't doing our jobs by giving the state a gimme on an element or two. Secondly, the jury may not care but the Court of Appeals will. The wrong jury instruction will result in a reversal more times than not. Given how risk-adverse some trial judges are, the likelihood of a judge giving an instruction at odds with the standard instruction is slim, and the chances of reversal are high, if you ask for the right instruction.
So, here is a quick summary of a portion of the relevant law, and a slight twist that might come in handy in the right case.
Ulbricht v. United States Pending petition
Issues: (1) Whether the warrantless seizure of an individual’s internet traffic information without probable cause violates the Fourth Amendment; and (2) whether the Sixth Amendment permits judges to find the facts necessary to support an otherwise unreasonable sentence.
Go to link above to get the petition, which deserves extra points for the Princess Bride references.
In a recent case, US v. Griffith, the contents of a search warrant affidavit are described as follows:
- The bulk of the ten-page affidavit supporting the search warrant explained Griffith's suspected involvement in the homicide committed more than one year beforehand. The affiant, a 22-year veteran of the police department, recounted the evidence and expressed his belief that Griffith had been the getaway driver. The affidavit also described the evidence that Griffith now lived with Lewis in her apartment.
Two sentences in the affidavit then set out the basis for believing incriminating evidence would be discovered in the apartment. Those sentences read as follows:
- Based upon your affiant's professional training and experience and your affiant's work with other veteran police officers and detectives, I know that gang/crew members involved in criminal activity maintain regular contact with each other, even when they are arrested or incarcerated, and that they often stay advised and share intelligence about their activities through cell phones and other electronic communication devices and the Internet, to include Facebook, Twitter and E-mail accounts.
- Based upon the aforementioned facts and circumstances, and your affiant's experience and training, there is probable cause to believe that secreted inside of [Lewis's apartment] is evidence relating to the homicide discussed above.
Is that enough for probable cause? The federal circuit court ruled as follows:
- The government's argument in support of probable cause to search the apartment rests on the prospect of finding one specific item there: a cell phone owned by Griffith. Yet the affidavit supporting the warrant application provided virtually no reason to suspect that Griffith in fact owned a cell phone, let alone that any phone belonging to him and containing incriminating information would be found in the residence. At the same time, the warrant authorized the wholesale seizure of all electronic devices discovered in the apartment, including items owned by third parties. In those circumstances, we conclude that the warrant was unsupported by probable cause and unduly broad in its reach.
The court explains further:
- In light of the distinctness of the inquiries, probable cause to arrest a person will not itself justify a warrant to search his property. Regardless of whether an individual is validly suspected of committing a crime, an application for a search warrant concerning his property or possessions must demonstrate cause to believe that “evidence is likely to be found at the place to be searched.” Groh v. Ramirez, 540 U.S. 551, 568 (2004). Moreover, “[t]here must, of course, be a nexus ․ between the item to be seized and criminal behavior.” Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307 (1967).
- Those concerns about the distinct requirements for a search warrant are particularly salient in this case, for two reasons. First, the warrant application sought authorization to search a home, which stands at “the very core” of the Fourth Amendment's protections. Silverman v. United States, 365 U.S. 505, 511 (1961); see Groh, 540 U.S. at 559. Second, the scope of a permissible search depends on the specific spaces in which the object of the search might be found. See Maryland v. Garrison, 480 U.S. 79, 84-85 (1987). Authorization to search for an item fitting in the palm of a hand, like a cell phone, thus can entail an intrusive inspection of all corners of a home. (And here, as explained below, officers sought and obtained authorization to continue their search until they found every cell phone and electronic device in the apartment.) This case, in short, involves the prospect of an especially invasive search of an especially protected place.
Wait! Is the court really saying there must be some evidence that this particular suspect owned a cell phone?
- That brings us back to the warrant application's reliance on cell phones—in particular, on the possibility that Griffith owned a cell phone, and that his phone would be found in the home and would contain evidence of his suspected offense. With regard to his ownership of a cell phone, it is true that, as the Supreme Court recently said, cell phones are now “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Riley, 134 S. Ct. at 2484. We do not doubt that most people today own a cell phone.
- But the affidavit in this case conveyed no reason to think that Griffith, in particular, owned a cell phone. There was no observation of Griffith's using a cell phone, no information about anyone having received a cell phone call or text message from him, no record of officers recovering any cell phone in his possession at the time of his previous arrest (and confinement) on unrelated charges, and no indication otherwise of his ownership of a cell phone at any time. To the contrary, the circumstances suggested Griffith might have been less likely than others to own a phone around the time of the search: he had recently completed a ten-month period of confinement, during which he of course had no ongoing access to a cell phone; and at least one person in his circle—his potential co-conspirator, Carl Oliphant—was known not to have a cell phone.
- We are aware of no case, and the government identifies none, in which police obtained authorization to search a suspect's home for a cell phone without any particularized information that he owned one. In the typical case, officers will have already come into possession of a suspect's phone after seizing it on his person incident to his arrest. See, e.g., id. at 2480-82; United States v. Bass, 785 F.3d 1043, 1049 (6th Cir. 2015). Officers also might receive reliable indication of a suspect's possession of a cell phone. See, e.g., United States v. Mathis, 767 F.3d 1264, 1269 (11th Cir. 2014); United States v. Grupee, 682 F.3d 143, 145-46 (1st Cir. 2012). There was no such information here about Griffith.
Orin Kerr believes the gov't should prevail in the potentially explosive case of US v. Carpenter, argued in November at SCOTUS. But oral argument suggested that the court had a majority in favor of Carpenter. Orin Kerr -- who is always worth reading but particularly on cases where electronic devices and the 4th Amendment intersect -- proposes a way that the court could rule for Carpenter that he thinks makes the most sense.
- If the Court wants to rule for Carpenter, I think the best rule would be that the Fourth Amendment gives individuals Fourth Amendment rights in records solely useful to the government to identify that individual's physical location at a particular time. The question would be objective: Is that category of record something that ordinarily is solely useful to the government to determine a person's location? If the nature of that kind of record means that it is of a type ordinarily only of government use to identify a person's physical location, then it is protected by the Fourth Amendment unless there has been consent to the search. On the other hand, if government collection of that kind of record ordinarily has a non-location purpose, then this special rule would not apply and the third-party doctrine would continue to apply.
This is an attractive argument. There is something particularly disturbing about the concept of perpetual surveillance. But of course such surveillance is complicated when we voluntarily carry around the instruments of such surveillance. Regardless, I'm linking to Mr. Kerr's argument not merely because it's always valuable to work through such issues (especially when the potential unravelling of the third-party doctrine could have such a big impact on the practice of criminal defense), but also because his analysis is useful for those of who might litigate the issue at the trial level and your client's location is exactly what the government was seeking.
New York Times story here. Key quote:
- The continued declines are a boon to Mr. de Blasio, a Democrat elected on promises of police reform — promises that prompted warnings of mayhem to come by his opponents in 2013. But the opposite has happened, putting him on stronger footing as he pivots to a second term with a Police Department transformed to exercise greater restraint as it focuses on building trust in the city’s neighborhoods.
Kevin Drum's observation about the news here. Key quote:
- I should note that the lead-crime hypothesis predicted this. In fact, I did predict this four years ago. As long as lead poisoning rates stay low, there’s simply no reason to think that crime rates will change dramatically because of stop-and-frisk or anything else.
- Lead is no longer significantly responsible for changes in crime rates. That happened between 1990-2010 as the number of lead-poisoned children plummeted. But everyone under 30 today was born in a low-lead environment, and there’s not much lower for things to go. So when you see crime spikes either upward (Chicago) or downward (New York) it has nothing to do with lead exposure. Other factors are now far more at play.
- However, what you can say is that, generally, low crime rates are here to stay. Better or worse policing can change things at the margin, but we’re just not ever going back to the 70s and 80s. Thanks, EPA!
By the way, the NY Times also published this story: E.P.A. Wanted Years to Study Lead Paint Rule. It Got 90 Days. Key quote:
- A federal appeals court on Wednesday ordered the Environmental Protection Agency to revise its nearly 17-year-old standard for dangerous levels of lead in paint and dust within one year, a rare legal move that amounts to a sharp rebuff of President Trump and Scott Pruitt, the E.P.A. administrator.
- The decision also called attention to the persistent threat of lead paint to children in millions of American homes, four decades after the federal government banned it from households.
Asboth v. Wisconsin 17-781
Issue: Whether standardized criteria must guide police discretion to seize a vehicle without a warrant or probable cause after its operator has been taken into police custody.
Quarles v. United States 17-778
Issue: Whether Taylor v. United States’ definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or first unlawful remaining, as two circuits hold; or whether it is enough that the defendant formed the intent to commit a crime at any time while “remaining in” the building or structure, as the court below and three other circuits hold.
Neither have been granted yet.
- The Supreme Court heard oral argument this morning in an important privacy-rights case. The defendant in the case, Timothy Carpenter, was convicted and sentenced to 116 years in prison for his role in a series of armed robberies in Indiana and Michigan. At his trial, prosecutors introduced Carpenter’s cellphone records, which confirmed that his cellphone connected with cell towers in the vicinity of the robberies. Carpenter argued that prosecutors could not use the cellphone records against him because they had not gotten a warrant for them, but the lower courts disagreed. Today the Supreme Court seemed more sympathetic, although they were clearly uncertain about exactly what to do. As Justice Stephen Breyer put it at one point, “This is an open box. We know not where we go.”
For Orin Kerr's view that Carpenter is likely to win (even if he doesn't think he should), check this out: https://www.facebook.com/Lawfareblog/videos/1604734639583162/
For the transcript of oral argument, go here.
For Dahlia Lithwick's take, go here.
A murder conviction was reversed last week, on the grounds that the search warrant for the cell phone was overbroad. State v. Allen.
Allen relied on the Court of Appeals opinion, State v. Mansor. Mansor is currently under advisement at the Oregon Supreme Court.
For an overview of the issue by an assistant district attorney, see this very new New York Law Journal article on the topic. It's useful if you're looking for out-of-Oregon opinions on the topic.
Its somewhat bland conclusion:
- Given the advances in technology and the centrality of computers in the everyday lives of most people, computer searches have come under increased judicial scrutiny. The particularity clause of the Fourth Amendment has been asserted by the defense with new vigor in the context of digital raids authorized by search warrants. For the most part, though, courts continue to uphold reasonable specificity in particularity of the items to be seized that gives sufficient guidance to executing officers, and leaves them little discretion. Nevertheless, it is certain that this area of the law will continue to be scrutinized by the courts, and evolve in light of technological developments.
Assume your client is arrested for X. He is charged with something flowing out of the arrest, but before that something is litigated, he is acquitted of whatever he was originally arrested for. The jury is entitled to hear about the arrest, despite the acquittal, because it's highly relevant to the subsequent charges. Do the jurors get to hear he was acquitted?
- “[T]he admission of evidence of other offenses in which the defendant has been involved without disclosing that he was acquitted tends to brand him as a ‘criminal’ and exposes him to the danger that the jury might lose sight of the presumption of innocence and the high level of proof required to rebut it.”
Smith, 271 Or at 299.
When is it abuse of discretion for a judge to give a "witness-false-in-part" instruction over the defendant's objection?
- Although defendant told the police something different about her behavior the night of the offense than she testified to at trial, in her trial testimony, she admitted that she had lied to the police earlier. In response to questions on cross-examination, defendant explained that she had lied about Brett being in the bedroom because she did not want him to get into trouble for drinking in violation of his probation. Thus, the identified inconsistency does not tend to show that there was anything about defendant’s testimony that was false—let alone consciously false—when measured against her earlier statements. Instead, defendant’s testimony in this case demonstrates quite clearly that her prior statements were false, not that her testimony was false. In other words, there is nothing about defendant’s statements to the police that contradicts her testimony at trial that she had lied in making those statements. In short, defendant’s statements at the scene do not provide a basis from which the jury could find that defendant consciously testified falsely, and the court abused its discretion in giving the instruction on that basis.”
Milnes, 256 Or App at 708-09 (emphases omitted).
- On November 29, 2017, the Supreme Court is scheduled to hear argument in one of the most important digital privacy cases in recent years. Carpenter v. United States has its origins in a string of armed robberies in Michigan and Ohio that occurred over a period of several months in late 2010 and early 2011. As part of the resulting criminal investigation, the government requested and received a court order to obtain what is often called “cell site location information” (CSLI) for the mobile phone owned by Carpenter, who was one of the suspects in the investigation. The CSLI information, which placed Carpenter’s phone at a location within several miles of the crime scenes, was presented along with video evidence and eyewitness testimony at a federal district court trial in which Carpenter was convicted. After the Sixth Circuit upheld the conviction, Carpenter appealed to the Supreme Court, arguing that the government’s warrantless acquisition of CSLI violated his Fourth Amendment rights.
Defendant was a police officer who was suspected of sexual battery of a student ride along. There were text messages, and a search warrant was obtained for his cell phone. The lack of a time frame for the text messages didn’t make the warrant violate the Fourth Amendment because it was limited to one person’s text messages. State v. Swing, 2017-Ohio-8039, 2017 Ohio App. LEXIS 4392 (12th Dist. Oct. 2, 2017).
SCOTUS granted review today of a case that SCOTUSblog describes as follows:
- In McCoy v. Louisiana, the justices will consider the case of Robert McCoy, who was convicted of first-degree murder for the shooting deaths of his estranged wife’s son, mother and step-father. After firing his public defender, McCoy was represented by Larry English, an attorney paid by his parents. As with his public defender, McCoy maintained his innocence in meetings with English and “emphatically opposed” English’s proposal to concede that McCoy was guilty in the hope that he would be spared the death penalty. McCoy attempted to remove English and represent himself, but the trial court rejected his request on the ground that it came too late: His trial was only a few days away.
- When the trial began, English did indeed concede McCoy’s guilt, over interruptions from McCoy. McCoy was convicted and sentenced to death. He appealed (among other things) English’s concession of guilt, arguing that it violated his constitutional right to have the effective assistance of an attorney. The Louisiana Supreme Court denied his appeal, but now the Supreme Court will consider his claim.
Summary from FourthAmendment.com:
- Defendant had a reasonable expectation of privacy that society is now prepared to recognize as reasonable from installation of a pole camera across the street from his house and monitoring it for two months based solely on a tip that he was involved in drugs. The state, however, gets the benefit of the good faith exception because this is the first time this happened. State v. Jones, 2017 SD 59, 2017 S.D. LEXIS 115 (Sept. 20, 2017).
The rest of the details here.
The case is State v. Sines. It is a significant, thorough opinion on a particularly complicated search and seizure issue.
This opinion is almost certainly helpful in cases where the police lawfully seize a firearm without a warrant (during a traffic stop, for example) and then do an arguably unlawful ballistics test, also without a search warrant. The facts in Sines are much, much different, but the analysis would be similar.
Defendant’s blood draw in the hospital was for medical purposes, and a search warrant was required to get access to that information. Trial court affirmed. State v. Saunders, 2017-Ohio-7348 (5th Dist. 2017).
- Therefore, we hold that an OVI suspect in Ohio enjoys a reasonable expectation of privacy in his or her medical records “that pertain to any test or the result of any test administered to the person to determine the presence or concentration of alcohol, a drug of abuse, or alcohol and a drug of abuse in the person's blood, breath, or urine at any time relevant to the criminal offense in question,” which are stored securely in a hospital. R.C. 2317.022(B). It follows that, prior to obtaining such medical records a law enforcement officer must comply with the warrant requirement of the Fourth Amendment.
Great article by Emily Yoffe can be found here.
- In meeting this federal demand, some schools have come to rely on the work of a small band of self-styled experts in the neurobiology of trauma who claim that sexual violations provoke a disabling, multifaceted physiological response. Being assaulted is traumatic, and no one should expect those who have been assaulted to have perfect recall or behave perfectly rationally, but this argument goes much further. It generally goes like this: People facing sexual assault become terrified, triggering a potent cascade of neurotransmitters and stress hormones.This chemical flood impairs the prefrontal cortex of the brain, impeding victims’ capacity for rational thought, and interferes with their memory. They may have significant trouble recalling their assault or describing it coherently or chronologically. The fear of imminent death may further elicit an extended catatonic state known as “tonic immobility,” rendering them powerless to speak or move—they feel “frozen.”
- As a result, those adjudicating sexual-assault allegations are told, the absence of verbal or physical resistance, the inability to recall crucial parts of an alleged assault, a changing story—none of these factors should raise questions or doubt about a claim. Indeed, all of these behaviors can be considered evidence that an assault occurred.
But . . .
- I talked with Richard McNally, a psychology professor at Harvard and one of the country’s leading experts on the effects of trauma on memory, about the assertions Campbell made in her presentation. He first said that because assaults do not occur within the laboratory, “there is no direct evidence” of any precise or particular cascade of physiological effects during one, “nor is there going to be.” But there is plenty of evidence about how highly stressful experiences affect memory, and much of it directly contradicts Campbell. In his 2003 book, Remembering Trauma, McNally writes, “Neuroscience research does not support [the] claim that high levels of stress hormones impair memory for traumatic experience.” In fact, it’s almost the opposite: “Extreme stress enhances memory for the central aspects of an overwhelming emotional experience.” There is likely an evolutionary reason for that, McNally said: “It makes sense for natural selection to favor the memory of trauma. If you remember life threatening situations, you’re more likely to avoid them.” Notably, survivors of recent horrific events—the Aurora movie-theater massacre, the San Bernardino terror attack, the Orlando-nightclub mass murder—have at trial or in interviews given narrative accounts of their ordeals that are chronological, coherent, detailed, and lucid.
- From the affidavit, a magistrate could infer that, because defendant’s cellular phone was used to take incriminating photographs—and defendant posted those photos on his Facebook page—there was a possibility that the photos had been transmitted to at least some of his other electronic devices. Yet, the contents of the affidavit failed to establish that is was more likely than not that such transmission had occurred with respect to all of his devices. See id. at 138 (“ ‘[T]he standard of probability requires the conclusion that it is more likely than not that the objects of the search will be found at the specified location.’ ” (Quoting State v. Williams, 270 Or App 721, 725, 349 P3d 616 (2015) (emphasis in Friddle).)). Thus, as in Friddle, because the affidavit contains no specific information to support an inference that data existing on one device would have been transmitted to other devices belonging to defendant, the affidavit was insufficient to support probable cause to examine those other devices.