Category Archives: Fourth Amendment

From Judge James Browning's opinion yesterday in Rosales v. Bradshaw (D.N.M.), which held that the sheriff's deputy used unconstitutionally excessive force (though ultimately rules that the force wasn't clearly unreasonable, and thus the deputy is protected by qualified immunity):

[Mario] Rosales alleges that [David] Bradshaw used excessive force when Bradshaw: (i) followed Rosales home in an unmarked vehicle and blocked Rosales in his driveway; (ii) "yell[ed] and curs[ed] at Rosales in a loud, threatening, and abusive manner"; (iii) "identified himself as Officer Bradshaw and threatened Rosales with a reckless driving citation"; (iv) drew his revolver and "point[ed] it at Rosales in a threatening manner"; and (iv) "purposefully raised his gun at Rosales in a manner that made him fear he was about to be shot by Bradshaw." Bradshaw argues that his actions were objectively reasonable, because Rosales had a visible gun in his pocket and walked down his driveway towards Bradshaw until Bradshaw drew his gun and told him to stop.

Bradshaw's actions "inescapably involve[] the immediate threat of deadly force," and thus "should be predicated on at least a perceived risk of injury or danger to the officers or others." "[T]he 'nature and quality'" of Bradshaw's "intrusion" on Rosales' Fourth Amendment protections "was quite severe," because Rosales had good reason to fear for his life when Bradshaw, who had followed him home in an unmarked vehicle and was not in uniform, pointed a revolver at him in a threatening manner.

Consistent with the Supreme Court in Graham v. Connor, the Tenth Circuit analyzes three factors to determine whether an officer's use of force is objectively reasonable: (i) the crime's severity; (ii) whether the suspect poses an immediate threat to the safety of the officers or of others; and (iii) whether the suspect actively is resisting arrest or is attempting to evade arrest by flight. The Court concludes that all three factors weigh against Bradshaw and that Bradshaw's decision to point a firearm at Rosales in a threatening manner is objectively unreasonable, because: (i) Rosales' alleged crime is only a petty misdemeanor; (ii) Rosales' initial approach towards Bradshaw's vehicle with a gun in his pocket did not pose a reasonable threat under the circumstances; and (iii) at no point was Rosales resisting or evading arrest.

The first factor, the severity of Rosales' crimea petty misdemeanorweighs heavily against the use of anything more than minimal force or any force at all. Bradshaw states that he followed Rosales to his home to give him a citation for reckless driving. Rosales alleges that he "decided to pass Bradshaw to which Bradshaw apparently took great offense" and he started making turns without using his turn signal after he realized Bradshaw was following him. As the Court has noted, officers may not use the same level of force "to arrest a submissive misdemeanant" as they "may use to apprehend a fleeing felon."

The Tenth Circuit explains that "the second Graham factor, 'whether the suspect pose[s] an immediate threat to the safety of the officers or others,' , is undoubtedly the 'most important' and fact intensive factor in determining the objective reasonableness of an officer's use of force." The Tenth Circuit uses a number of non-exclusive factors to evaluate a suspect's threat level, including: "(1) whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect." The Court concludes these factors weigh heavily against the reasonableness of Bradshaw's perception that Rosales posed a threat under the second factor of Graham v. Connor.

Rosales did not fail to comply with Bradshaw's commands at any point during the incident. Rosales made no hostile motions, because he kept his hands away from his firearm, and he did not touch his firearm until Bradshaw ordered him to put it in his vehicle. The third factorthe distance separating the officers and the suspectweighs slightly in Bradshaw's favor .

Under the fourth factorassessing the suspect's manifest intentionsBradshaw contends that Rosales posed a reasonable threat of danger or violence to him, because he "emerge[d] from his vehicle with a weapon" and "approached Mr. Bradshaw's vehicle with a firearm." The Court concludes that Rosales' intentions were not hostile; rather, "Rosales attempted to speak reasonably with Bradshaw"; "ke[pt] his hands clear of his firearm"; continued to "try[] to reason with [Bradshaw]"; and "walked a little closer to Bradshaw's truck in an attempt to talk in a normal tone of voice." Rosales also deliberately "explained that New Mexico is an open carry state and he simply was exercising his rights and that he was on his own private property," and "remain[ed] in his driveway." Rosales stayed calm throughout the encounter even though Bradshaw dramatically escalated the situation by "purposefully rais[ing] his gun at Rosales in a manner that made him fear he was about to be shot by Bradshaw" . Further, Bradshaw should not have been "surprise[d]" that Rosales decided to arm himself, after an unmarked car followed him home and blocked him in his driveway.

Bradshaw's first indication that Rosales was not treating the incident like a normal traffic stop, but rather was evading an unknown pursuer in fear, was after "Bradshaw began to follow Rosales," and "Rosales made a series of turns without using his turn signal to determine if Bradshaw was following him." When Rosales put his gun in his pants pocket and exited his vehicle, it was still in the context of an unknown, unofficial pursuer. If the Court views the evidence in the light most favorable to Rosales, Rosales acted cautiously and reasonably, and not hostilely, and his intentions were to learn why an unidentified and aggressive person had followed him home, and blocked his driveway. The Court concludes, therefore, that the fourth factor weighs heavily against Bradshaw.

When evaluating the second Graham v. Connor factor, the Tenth Circuit also considers the degree to which an officer's conduct leading to the use of force that provoked a suspect's defensive actions and thus created the need to use force.

Here, in response to only a suspected misdemeanor traffic violation, Bradshaw: (i) while off-duty; (ii) in an unmarked personal vehicle; (iii) and not in uniform; (iv) followed Rosales; (v)even after "Rosales made a series of turns without using his tum signal to determine if Bradshaw was following him"; (vi) blocked Rosales in his driveway with his vehicle; and (vii) when Rosales exited his vehicle, "Bradshaw immediately started yelling and cursing at Rosales in a loud, threatening, and abusive manner." Bradshaw's "prior conduct is 'immediately connected' to" Rosales taking precautions against an unknown pursuer who followed him home, because, right after Bradshaw blocked Rosales' exit from his driveway, "Rosales became afraid to exit his vehicle and before he did so, he grabbed his handgun from his car and tucked the barrel of his handgun in his pants pocket leaving the handle of the gun visible and openly displayed."

Next, after Rosales' exited his vehicle, "Bradshaw immediately started yelling and cursing at Rosales in a loud, threatening, and abusive manner," without identifying himself as an officer. Then, when "Rosales attempted to speak reasonably with Bradshaw[,] Bradshaw continued to yell at Rosales in an angry and threatening manner." By escalating the conflict, Bradshaw again disregarded a substantial risk that Rosales could respond in kind. Bradshaw's conduct therefore led Rosales to then "walk[] a little closer to Bradshaw's truck in an attempt to talk in a normal tone of voice." The Court concludes, therefore, that, even if Rosales' actions posed a reasonable threat to Bradshaw, the second Graham v. Connor factor still would weigh against Bradshaw, because his own conduct prompted Rosales to put his firearm in his pocket and walk down his driveway.

Under the third Graham v. Connor factor, the Court considers the extent to which Rosales was resisting or evading arrest. The Court concludes that Rosales neither was "actively resisting arrest" nor was "attempting to evade arrest by flight"; rather Rosales stayed calm, remained in his driveway, and, after Bradshaw identified himself as an officer, complied with Bradshaw's commands.

The rest is here:
Excessive Force and Stops of Armed Civilians by Out-of-Uniform Sheriff's Deputies in Unmarked Vehicles - Reason

CHICAGO People driving on the West Side are the most likely to be pulled over by police, with small pockets of the city accounting for far greater percentages of stops than much larger affluent areas.

But if officers are pulling over drivers in the predominantly Black neighborhoods with the intent of searching for guns or drugs, as some critics suspect, the strategy is not effective. The stops largely dont lead to gun or drug seizures and rarely even lead to traffic tickets.

An analysis of 2020 Chicago traffic stop data shows Black drivers in West Side neighborhoods are disproportionately impacted by the departments unequal traffic enforcement. In one five-by-eight-block stretch on the West Side, there were more traffic stops than in a 31.5-square-mile police district on the outskirts of the city.

The analysis raises questions about whether Chicago police are targeting traffic stops in majority Black neighborhoods to try to prevent crime a move that would violate peoples constitutional rights, critics said.

If youre doing that many stops and youre not finding anything, whats really going on? Most of the time, [police] dont find anything, said Mark Lewis, director of holistic legal services at Lawndale Christian Legal Center.

Illinois Traffic and Pedestrian Stop Studydata shows traffic stops conducted by Chicago police have nearly quadrupled in recent years, from around 85,000 stops in 2015 to 327,224 traffic stops in 2020.

Black drivers were pulled over six times more than white drivers in 2020, despite only 30 percent of the citys population being Black. Of the 327,224 traffic stops made by Chicago police in 2020, about 62 percent of the drivers stopped were Black, about 24 percent were Hispanic and about 11 percent were white.

The racial disparity is largely due to a concentration of stops in West Side neighborhoods especially East and West Garfield Park, Austin, Lawndale and Humboldt Park and South Side neighborhoods, including Englewood.

Block Club Chicago analyzed how many traffic stops happened in each of the 22 police districts. The stops were also mapped in smaller geographic areas, called police beats, that make up each district.

Four of the five police districts with the most traffic stops were on the West Side, the data showed. The districts with the most traffic stops:

Together, the four West Side districts account for 35 percent of all traffic stops in the city.

Residents living in the 11th Police District account for less than 3 percent of the citys population, according to a2020 analysis of census databy CNN data editor John Keefe. But 13 percent of all traffic stops in 2020 happened in that district, police data shows.

By comparison, in the 16th District which covers Jefferson Park, OHare, Norwood Park, Edison Park, Forest Glen, Portage Park and Dunning on the Northwest Side there were just 4,575 stops in 2020. More than 7 percent of the citys population lives there but it accounted for just 1.4 percent of all traffic stops.

Several police beats on the West Side some as small as five-by-eight blocks had more traffic stops than the entire 31.5-square-mile 16th district, where there were just 4,575 stops in 2020. A beat straddling Humboldt Park and Garfield Park had 6,081 stops, and another in South Austin had 5,875, more than any other police beats in the city, data shows.

Ald. Jason Ervin (28th), whose ward covers much of the 11th Police District, said the tremendous number of traffic stops on the West Side isnt a major issue as long as they are being conducted in a constitutional manner.

Chicago police is in these areas trying to do the best they can to curb criminal activity. If traffic stops are part of the tools that theyre using to curb criminal activity, as long as those things have been done in a constitutionally sound manner, then I think that is what citizens in the community have asked for, Ervin said.

But many stops dont result in tickets. In 91.2 percent of stops last year, Chicago cops didnt issue any citations. On the West Side, cops didnt issue tickets in 93.8 percent of stops.

Chicago cops ticketed drivers in 8.8 percent of stops citywide. Statewide, cops gave out tickets in 34.2 percent of stops. In suburban Aurora, its 29 percent. In Joliet, the ticket rate is 69 percent, according to state data.

And though Black drivers are pulled over a disproportionate amount, its white drivers who are more likely to be ticketed. About 9.3 percent of white drivers, 8.9 percent of Hispanic drivers and 8.4 percent of Black drivers were ticketed after being pulled over in 2020, data shows.

Most traffic stops dont result in guns, drugs or drug paraphernalia being taken off the streets, either. Of the 327,224 traffic stops last year, contraband was found in 1,379 of them just .42 percent of stops.

Of the 11,273 guns taken in by police last year, 370 were found in traffic stops.

In the West Side police beat where more than 6,000 traffic stops happened in 2020, more than any other place in the city, contraband was found in just .16 percent of stops, lower than the city average, the data shows.

This is causing more harm than good. This is not an effective law enforcement strategy, and we need to rethink it, said Rachel Murphy, an attorney with the American Civil Liberties Unions Illinois branch.

The data may also indicate an overwhelming majority of traffic stops have little to nothing to do with traffic safety, said Sonny Thatch, managing attorney of Communities Partnering 4 Peaces Justice Corps, a free community legal clinic.

The lack of overall ticketing and massive racial disparity in stops could suggest officers are stopping drivers in targeted areas as a way to search peoples cars and investigate other crime, rather than to keep the streets safe, Thatch said.

It implies that traffic may not be the focus of the stop. The true focus of the officer may be ascertaining whether somebody has a weapon. Ive seen [gun charges] result out of a traffic stop in some of our cases. Possession of drugs. It seems like theyre looking for something with a little more heft, Thatch said.

Justice Corps provides free legal aid, especially for expungements and sealings, through neighborhood groups in areas where many young people are in the justice system, including in Austin and Garfield Park. In those neighborhoods, there is a pattern of multiple traffic stops among clients who want help getting their records expunged, Thatch said.

Many of those seeking expungements were stopped for traffic violations like failing to wear a seatbelt or speeding, but they wound up with more serious charges, like possession, driving with a suspended license or disorderly conduct, Thatch said. Some had a suspected gang affiliation noted in their arrest records, he said.

That leads me to believe possibly some officers are patrolling areas that have a reported high level of gang or street organization activity, and [they] are making stops of individuals they suspect to be affiliated with street organizations for the purpose of further investigation. Traffic seems to be an easy means to do that, Thatch said.

If the surge in traffic stops is a strategy for dealing with other crime, then officers have the discretion to increase traffic enforcement and focus on drivers who meet the profile of who they expect a criminal to be. That can lead to bias becoming one of the factors that officers, maybe unconsciously, use in deciding who to pull over, Murphy said.

It definitely raises Fourth Amendment concerns. If they are stopping people without legal justification, then that is a violation of your constitutional rights, Murphy said.

Also troubling are allegations by a 20-year police veteran that the department uses illegal quotas requiring officers to conduct more traffic stops and arrests, Murphy said. The whistleblower, Lt. Franklin Paz, filed a lawsuit early this year against the city that claimed the policy requires officers to make baseless stops that violate peoples civil rights.

Numbers-driven policing leads to illegal policing in the neighborhoods of people of color, Torreya Hamilton, the whistleblowers attorney, told the Chicago Tribune. Forcing police officers to generate certain numbers-driven activity levels, that leads only to illegal stops.

Community Policing Director Glen Brooksadmitted in 2018that Chicago police target traffic enforcement in neighborhoods that struggle with crime.

When we have communities experiencing levels of violence, we do increase traffic enforcement, Brooks said.

Police Supt. David Brown recently walked back those statements and denied West Side drivers were being targeted. The increased traffic enforcement is not because of racial bias, but because residents have asked for more police activity to stop violence, he said.

I realize there is a long history regarding allegations of bias in traffic stops. I would overlay that where violence is occurring is where people in those communities want police to do their jobs, Brown said.

Though officers seldom find contraband in stopped cars, the huge number of stops on the West Side has still made traffic enforcement one of the primary ways people in the area enter the criminal justice system, Lewis said.

This is a huge pipeline, a huge conduit for Chicago police to infuse the criminal justice system with young people, Lewis said.

More than half of the young people with criminal cases at the West Side legal clinic were arrested after being pulled over for a minor traffic issue, Lewis said. The stops are an unlawful and unethical policing practice that puts all residents in affected areas, especially young people, under an unfair level of scrutiny, he said.

They usually dont know their rights, Lewis said. Theyre young people who are unfortunately in a system that oppresses them, not intermittently but day to day, every time they take a breath.

The traffic stops and arrests demonstrate how overpolicing contributes to the cycle of mass incarceration and distrust toward police from communities who feel unfairly targeted, Lewis said.

If a large proportion of our future is suffering from PTSD because theyve been abused by the system, theyre going to carry that with them and that causes breaks and cracks in society, Lewis said.

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West Side Drivers Are Stopped By Cops The Most In Chicago. But 94% Of Stops Don't Lead To Tickets - Block Club Chicago

A number of GOP Iowa state representatives and lawmakers are arguing that vaccine mandates violate U.S. sanctioned laws.

On Tuesday, Iowa Republican lawmakers and citizens gathered at the Iowa State Capitol to rally and voice their frustrations regarding potential mandates that may come forth in the state.

Iowa State Representatives Sandy Salmon and Jeff Shipley spoke at the event which was hosted by the anti-vaccination group "Informed Choice Iowa."

Salmon believes that all vaccine mandates violate the Fourth Amendment of the U.S. Constitution.

"We have not just COVID-19, but we have totalitarian fever, and that is what we have to eradicate," said Salmon to Iowa Capital Dispatch.

According to the Constitution, the Fourth Amendment states that Americans have the right to be secure in their "persons, houses, papers, and effects, against unreasonable searches and seizures."

The Fourth Amendment also stated that these rights should not be violated 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."

Meanwhile, Shiply stated that medical lines must be honored when it comes to everyday Americans and their freedoms.

"There are scared lines that must not be crossed," said Shiply to the Iowa Capital Dispatch. "There is the sacred line of medical freedom. Does anyone really think this vaccine mandate will be the end of it?"

Tamara Scott, a national committeewoman for the Republican Party spoke at the rally and mentioned that she was "actually aggravated" at the thought of everyone having to be in attendance regarding the potential vaccine mandates.

"Who would have thought, in America, in Iowa, we would have to come to plead for our rights and our liberty?" questioned Scott at the event.

As of Tuesday, lawmakers will not consider legislation on vaccine requirements but speakers at the rally are urging Governor Kim Reynolds and legislators to have another session to address the forthcoming mandates. Speakers at the rally also encouraged Iowans to reach out to lawmakers for answers.

Currently, there are no COVID-19 vaccine mandates, according to the state government, but a number of private businesses, including those in the healthcare sector require employees to be fully vaccinated. Reynolds has stated on a number of occasions throughout the pandemic that the decision to get vaccinated and wear a mask is a personal choice.

Newsweek has reached out to Informed Choice Iowa for further comments.

Read the original:
GOP Iowa State Rep. Says Vaccine Mandates Violate Fourth ...

The motions hearing in the case of Kevin Eastman, 49, who was accused of killing Greeley residents Stanley Scott Sessions and Heather Frank in February 2020, awaits a written order from a judge after hearing four testimonies and the defenses motions on Monday.

In early February 2020, Eastman was accused of killing 53-year-old Sessions by cutting his neck at the Greeley home of Frank, Eastmans ex-girlfriend. Eastman allegedly dumped the body of Sessions near Pingree Park in Larimer County, and tried to burn the body to dispose of the evidence.

About a week later, he was accused of fatally shooting Frank and hiding her body on rural Weld County property where he was employed.

Investigators detected similarities in the way the bodies of both Frank and Sessions were found. Both were wrapped inside a pile of wood.

Sessions was a well-known trumpet player in the Movers and Shakers, a Colorado band, who often played played Greeley music venues.

Eastman entered a not guilty plea for charges including first-degree murder after deliberation, tampering with deceased human bodies and tampering with evidence, as well as a weapons charge in April 2021 before Weld District Judge Marcelo Kopcow.

After delays in the case due to COVID-19, and two competency evaluations ordered by Eastmans defense team, Eastman was deemed competent to go to trial. The trial is set for January.

During the Monday hearing, the defense motioned to suppress involuntary statements made by Eastman due to the use of coercion, unlawful influence or unlawful inducement.

As well as, the motion to suppress the statements Eastman made during his almost six-hour interrogation due to inadequate Miranda rights made by the arresting officer and investigators. The defense argued the Miranda rights waiver was invalid. In addition, the Miranda rights advisement was invalid for a lack of language surrounding the right to have an attorney present.

Prosecutors called four law enforcement authorities to the stand during the hearing: Donnie Robbins, sergeant of the Larimer County Sheriffs Offices investigations unit; Jeremy Coleman, Larimer County Sheriffs Office investigator; Justin Atwood, another Larimer County Sheriffs Office investigator; and Gerald Porter, sergeant of the Weld County Sheriffs Offices patrol division and a deputy at the time of Eastmans arrest.

All authorities had a role in the arrest of Eastman on the morning of Feb. 16, who had two outstanding warrants for his arrest. Prior to his arrest, law enforcement was looking into Eastmans involvement in the murder of Sessions. Franks residence was being monitored by video surveillance, and Eastmans car was being monitored through GPS tracking.

Officials believed he was getting rid of evidence when GPS tracked him to remote locations throughout Weld County. As Robbins was looking into this, he crossed paths with Eastman in his vehicle.

When Eastman stopped at a gas station in Kersey, Robbins made the initial arrest. He advised Eastman of his Miranda rights, and his right to waive those rights and talk to law enforcement. Eastman agreed to this.

Robbins waited for Colemans arrival to transport Eastman to Larimer County Jail for questioning. In the meantime, two Weld County Sheriffs Office cars and deputies arrived on the scene and secured him in a patrol vehicle.

Robbins did not utilize the Larimer County Sheriffs Office Miranda rights form or document the advisement of rights, according to the defenses argument. As well as, criticized the arrest because of Robbins unmarked vehicle, lack of patrol rights for minutes after arrival and lack of traditional law enforcement uniform.

The defense indicated Robbins just flew in and immediately ordered Eastman to the ground with his gun.

When Coleman arrived, he transported Eastman to Larimer County for interrogation. He said Robbins told him he advised the suspect of his Miranda rights and that he waived them.

During the arrest, a wad of cash, cigarettes, a lighter and seven caliber casings all but two were spent were found in Eastmans pockets, but Coleman did not ask questions about these items.

Atwood and Ryan Myatt, another investigator, were in charge of the interviewing process back in Larimer County, which was recorded.

The interrogation lasted almost six hours, with a significant number of breaks, including one long lunch break. The interview ended just before Eastman requested to have an attorney present.

In response to the defenses motions, prosecutors argued Eastman was given breaks, water and food during the process. Throughout the interrogation, both investigators made it clear that Eastman didnt have to speak to them and brought up his right to attorney, which Eastman acknowledged and said he understood, according to prosecutors.

In addition to the Miranda rights, the defense argued law enforcement officials used coercion by exploiting Eastmans mental and physical health. The recording from the interview indicated Eastman received a head injury that affects his recollection of past events.

The defense also said Eastman was actively emotional and anxious during the interview. He can be seen breathing rapidly, hugging himself and rocking back and forth. At one point, he became physically ill and almost threw up.

Eastman had not slept at all the night prior to the interview, which is another factor in the motion to suppress his statements.

However, prosecutors argued he could have slept during his hour-and-a-half lunch break in the the interrogation room. Instead, Eastman ate lunch, sang, prayed and did push-ups.

Eastman even said, You guys are awesome, to the two investigators after the interview process ended. He also told them he thought Robbins was polite, prosecutors said.

Despite the multiple reminders of his rights during the interrogation and Robbins advisement, the defense argued no one advised him that he had the right to an attorney prior to his questioning. Due to Eastmans mental health, head injury and lack of sleep, the defense said the reading of rights process could have been confusing or misleading to him.

The defense also had motions in regards to the violation of the Fourth Amendment for the search warrants of the involved phones, the Frank residence, Eastmans car and Eastmans Facebook account. The team accused the affidavits of the case for being bare-boned and believed there was no probable cause to search.

In response, the prosecutors argued a Good Faith Exception, which means if search warrant evidence is deemed unsupported by probable cause, it can be permissible if the officers involved acted in reasonable reliance with the validation of the warrant.

A sequestration order that witnesses cannot discuss the testimonies made at the motions hearing was put into place by Kopcow. Defense argued there was a violation to this order when a witness in this case discussed her opinion against the defenses motions on an early afternoon Facebook post on Monday.

Kopcow anticipates a written order from Mondays motions hearing to be completed in the next few weeks. The pre-trial readiness conference is scheduled for 1:15 p.m. Dec. 21 before Kopcow in Weld District Court.

See the rest here:
Eastman case: Defense argues Fourth Amendment, Miranda ...

My latest article, The Fourth Amendment Limits of Internet Content Preservation, was recently published in final form by the St. Louis University Law Journal. Here's the abstract:

Every year, hundreds of thousands of Internet accounts are copied and set aside by Internet providers on behalf of federal and state law enforcement. This process, known as preservation, ordinarily occurs without particularized suspicion. Any government agent can request preservation of any account at any time. Federal law requires the provider to set aside a copy of the account just in case the government later develops probable cause and returns with a warrant needed to compel the account's disclosure. The preservation process is largely secret. With rare exceptions, the account owner will never know the preservation occurred.

This Article argues that the Fourth Amendment imposes significant limits on the preservation of Internet account contents. Preservation triggers a Fourth Amendment seizure because the provider, acting as the government's agent, takes away the account holder's control of the account. To be constitutionally reasonable, the initial act of preservation must ordinarily be justified by probable causeand at the very least, in uncommon cases, by reasonable suspicion. The government can continue to use the Internet preservation statute in a limited way, such as to freeze an account while investigators draft a proper warrant application. But the current practice, in which investigators order the preservation of accounts with no particularized suspicion, violates the Fourth Amendment.

The article begins:

Imagine you are an FBI agent. One day you receive an anonymous tip that a particular person has committed a crime. You go online and search for the person's name, and your search reveals that, like most American adults, the person has a Facebook account. At this point, you only have an unverified tip. You lack reasonable suspicion, much less probable cause, to believe a crime was committed. And you have no particular reason to think the Facebook account was involved. But imagine federal law gave you the power to preserve and set aside the suspect's entire Facebook account nowincluding every private message and every saved photojust in case you later had the probable cause needed to access it.

Let me explain how this hypothetical law would work. At any time, you could command any Internet provider to save all of the contents of any account for up to 180 days. In response to your command, the provider would copy the entire account and set aside the copy for you without notifying the account holder. You would be unable to see the contents of the account unless you eventually develop probable cause and obtain a warrant. But you would have 180 days to develop probable cause. If no probable cause emerged, the preservation would end, and the provider would delete the saved copy without notifying the suspect. And if you developed probable cause during the 180-day period, you could get a warrant and compel the provider to hand over the contents of the account that had been previously preserved.

This hypothetical law would have obvious appeal for government investigators. A lot can happen in 180 days. The suspect might delete incriminating files. The suspect might get wise to the investigation and delete his online accounts to prevent the government from accessing them. By saving accounts at the beginning of a case, investigators could ensure that every record in existence at the outset is available if probable cause later develops. And it would all happen behind the scenes, as the provider would not disclose the preservation to the account holder. Even if the government eventually obtained a warrant and filed criminal charges, the preservation would not be disclosed during routine discovery. The entire process would remain secret.

As you might have guessed, this scenario is not just hypothetical. It describes a federal law, 18 U.S.C. 2703(f), as it is interpreted and used today.

See more here:
Final Version, "The Fourth Amendment Limits of Internet Content Preservation" - Reason

The U.S. justice systems increasing lack of transparency raises serious constitutional concerns, according to a forthcoming American Criminal Law Review paper.

Many of the most critical elements of the system, ranging from grand jury proceedings and pretrial deliberations to jury deliberations are cloaked in secrecy that, while justified in many cases, may interfere with Fourth Amendment rights, argues Meghan J. Ryan, a Professor of Law at the Southern Methodist University Dedman School of Law.

The secrecy makes it difficult, if not impossible, to judge whether the U.S. justice system is living up to the values of American democracy, added Ryan, who is also the Dedman Schools Associate Dean for Research.

Although there are some justifications for this secrecy, the ubiquitous nature of it is contrary to this nations Founders steadfast belief in the transparency of criminal justice proceedings, she wrote.

Further, the pervasiveness of secrecy within todays criminal justice system raises serious constitutional concerns.

From beginning to end, covert operators and legal rules hide the inner workings of the system in what is effectively a black box impenetrable to outsidersand the system has become even more opaque thanks to the sophisticated technologies now used by police and government agencies in their investigations, Ryan details.

Despite [the] asserted justifications for shrouding the workings of our criminal justice system, this extensive secrecy is contrary to the systems transparency roots, Ryan argues.

The paper outlines how over the last two decades post-September 11, 2001, governments have used secret surveillance, requiring internet and telecommunication companies to surrender civilians personal data, browsing history and detailed conversations.

See Also: Chicago PD Used Hidden Funds to Launch Secret Drone Program

Law enforcement agencies have also used Stringray devices which mimic cell phone towers and send out signals to trick cell phones in the area into transmitting their locations and identifying information, just to name a few instances.

This, Ryan details, is the tip of the secret surveillance iceberg, for every piece of technology we know about, investigators have more.

Evidence exculpating defendants is often hidden from defendants, judges, juries, and the public more broadly, Ryan writes. Beyond hiding exculpatory evidence, prosecutors are also using secret evidence to actually convict criminal defendants.

Breathalyzer and some DNA evidence, for example, is based on source codes and algorithms to which defendants are generally denied access because they are categorized as trade secrets.

This means that defendants lack the opportunity to truly challenge this evidence in court.

Grand jury proceedings and jury deliberations are also examples of the secrecy black box.

Ordinarily, grand jurors are prohibited from disclosing information to the public, and the context for jury deliberations can only be given to the public after their decision is made public.

Even if there is evidence of juror misconduct infecting the discussions, this information ordinarily cannot be used to legally undercut the verdict that was reached, Ryan writes.

Instead, jury deliberations ordinarily remain a black box.

Plea bargaining and decisions about sentencing also are shrouded in secrecy. Plea bargaining discussions do not need to be on record, and final plea agreements are often not reduced to writing, Ryan explains.

See Also: The Assembly-Line Justice of Plea Bargaining

For many of these unique situations, if youre not permitted in the room in the moment when something is happening, you may never know how the resulting decision was made, Ryan explains.

Secrecy is pervasive within the criminal justice system, and its extent may very well beshocking, but there are some justifications for secrecy in at least some circumstances, Ryan acknowledged.

The most significant reason is the governments interest in protecting the integrity of its prosecution of cases, according to Ryan.

For example, the secrecy of juries is designed to protect jurors from outside influence and witness tampering, and ensure a fair and speedy trial.

Secrecy in plea bargaining prevents defendants from gaining useful information that prosecutors have offered other defendants, and putting others at a disadvantage.

Overall, Ryan writes, secrecy is meant to protect individual citizens, protect the government, protect witnesses, and the system as a whole.

However, too much secrecy leads to concrete constitutional concerns, she warns.

The intense secrecy surrounding much of todays government surveillance raises Fourth Amendment questions, Ryan begins, noting that everyone has the right to be free from unreasonable searches and seizures, and historically, the Supreme Court interprets this right to include privacy.

Some technologies, like the Stingray device, raise Fourth Amendment concerns on their own, Ryan explains.

Moreover, because of the secrecy regarding plea-bargaining and the inability to get evidence of what was said or agreed to behind closed doors, advocates argue that its nearly impossible to see if someone was discriminated against based on race, religion, or any other arbitrary classification, Ryan details.

Certainly, secrecy may sometimes be justified, and, in beginning to tear down the immense wall of secrecy within the system, we must be careful not to create unintended consequences that may be damaging to effective law enforcement and defendants constitutional rights.

But, Ryan concluded, It is now time to revisit the constitutional rules surrounding the secrecy that has become ubiquitous within our criminal justice system despite our Founding Fathers sincere belief in the transparency of the American criminal justice system.

Meghan J. Ryan is an Associate Dean for Research, Altshuler Distinguished Teaching Professor, and Professor of Law at the Southern Methodist University Dedman School of Law. She writes at the intersection of criminal law and procedures, torts, and law and science.

The full paper can be accessed here.

Additional Reading: Is It a State Secret If Everyone Knows It?

Andrea Cipriano is a TCR staff writer.

Link:
Does the Justice System's 'Black Box Secrecy' Violate the Constitution? - Crime Report

A few days before the elections, a dozen law enforcement unions demanded an overhaul of New York state laws on bail and discovery.

The issue was prominent in the race for Nassau County district attorney, in which Republican Anne Donnelly defeated state Sen. Todd Kaminsky, a Democrat, who had voted for an overhaul of state bail laws that eliminated pretrial detention and monetary bail conditions for most misdemeanors and nonviolent felonies.

The law enforcement unions argued that even though the state Legislature subsequently made changes in the law, it still was allowing dangerous criminals to be released.

At a news conference on Oct. 29, the representative of the law enforcement unions said a recent decision in Suffolk County Court that struck down part of the law showed that the entire bail reform package needed to be overhauled.

On Oct. 22, Suffolk County District Attorney Tim Sini said that a law that allows criminal defendants to move for a court order granting them access to crime scenes, including an individuals home, had been deemed unconstitutional.Sini said the victim in the case would have had Fourth Amendment rights, the expectation of privacy, violated.

At the news conference,John Wighaus, president of the Nassau County Detectives Association, said: The decision that has been reported recently regarding the unconstitutionality of a portion of the discovery law, points out the complete failure of the entire package of extreme bail and discovery laws that were passed in Albany. In particular, the cashless bail law has been disastrous for law abiding citizens.

Supporters of bail reform had argued that the system of cash bail fell heaviest on the poor and members of minority groups who could not afford to post bail.

But at the news conference, Brian Sullivan, president of the Nassau County Correction Officers Benevolent Association, said: Our judges are powerless to detain the majority of dangerous suspects because of the cashless bail law. The courts are forced to turn loose dangerous inmates who are free to wreak more havoc on the community after their release. Something has to be done.

The law enforcement unions endorsed Donnelly in the district attorney race.

Read more here:
Police union officials demand overhaul of New York bail laws - Williston Times - The Island Now

Letters to the Editor| The Columbus Dispatch

After quitting the 2018 Senate race, Josh Mandel disappeared from the public eye and never supported President Trump or his policies.

During this time, Mandel profited off the payday lending industry, an industry that exploits Ohioans into paying high interest rates for needed loans.While serving as state treasurer, he flew to the Bahamas to bring in cash for his campaign from the industry. During the pandemic, he made about $250,000 off the banks of working Ohioans in one year.

More: What did Josh Mandel do while he was out of the public eye for three years? Made big money

Mandel has a long history of profiting off others, despite claiming to be for the working Ohioan.

TheColumbus Dispatchhas also reported that campaign staffers have quit due to the toxic work environment created by Mandel and his finance director, who he is currently dating, where female workers were berated. He has focused his campaign on photo ops and tweeting controversial opinions to spark outrage on social media.

More: Josh Mandel's staff quit campaign because of toxic work environment created by staffer in relationship with Mandel, sources say

This is not what Ohioans need. Ohioans need to reject Mandel and vote for a Senate candidate that truly has Ohios values and best interests in mind. For me, that is Jane Timken.

Katie Rozsa,Ohio Wesleyan University student, intern for Jane Timken for Ohio

Governments need to leave the U.N. climate talks with a clear commitment to keep all remaining fossil fuels in the ground ASAP to avoid climate catastrophe, as climate scientists have long warned.Burning oil, coal and gas is the number one contributor to the climate emergency.

I applaud Rep. Joyce Beattys 95% League of Conservation Voters 2020 voting record on environmental issues, including climate change-related legislation.

Preventing real progress on climate legislation are fossil fuel corporations. Their power originates from Supreme Court decisions giving them never-intended constitutional rights: First Amendment free speech rights to spend money influencing elections and policies, Fourth Amendment privacy rights preventing public inspections to protect communities and the environment and Fifth Amendment takings rights that represent a massive deterrent to keeping fossil fuels in the ground since trillions of dollars of lost future profits that would have to be compensated.

Thats whyHJR 48, the We the People Amendment, is the fundamental solution. It would abolish all corporate constitutional rights, ensuring that the rights of people and the right to a livable world are achievable.

If Rep. Beatty is serious about saving the climate, workers and communities, she will join the 80 other Congressional co-sponsors of HJR48.

Sandy Bolzenius, Columbus

Continue reading here:
Letters: Mandel not focused on the values and best interests of Ohioans - The Columbus Dispatch

The U.S. is now more than 20 years beyond the Patriot Act of October 2001. The immediate aftermath of 9/11 brought a heavy U.S. state focus on Arabs and Muslims in the U.S., rationalizing an expansion of policing and surveillance activities against them. It also inspired the convergence of shared struggles for liberation out of a growing consensus that we cannot abolish policing without abolishing U.S. militarism and empire building.

The anything goes context of 9/11 opened up possibilities for expanded forms of policing and surveillance that are unconstitutional. The National Security Entry-Exit Registration System (NSEERS), also known as special registration, put in place by the Department of Justice in 2002, targeted Arabs and Muslims as well as those from the Middle East and South Asia. Overly broad interpretations of material support laws denied people generally Arabs and Muslims their freedom and even threatened some forms of humanitarian aid.

But none of this was entirely new. All this was preceded by President Richard Nixons Operation Boulder, which law professor Susan M. Akram has described as perhaps the first concerted US government effort to target Arabs in the US for special investigation with the specific purpose of intimidation, harassment, and to discourage their activism on issues relating to the Middle East.

Ironically, Timothy McVeighs 1995 Oklahoma City attack opened the door to the Clinton administration pushing forward a legislative effort allowing the government to use evidence from secret sources in deportation proceedings for aliens suspected of terrorist involvement. Under the measure, the government would not have to disclose the source of the damaging information to the person whom it is seeking to deport, The New York Times reported. A white extremist, then, had carried out a deadly bombing, but it was Arabs and Muslims (including Black Arabs and Black Muslims) who faced the prospect of deportation without ever being able to confront their accuser or even know the identity of those accusing them.

According to the ACLU:

The 1996 Antiterrorism and Effective Death Penalty Act established a new court charged only with hearing cases in which the government seeks to deport aliens accused of engaging in terrorist activity based on secret evidence submitted in the form of classified information. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act expanded the secret evidence court so that secret evidence could be more easily used to deport even lawful permanent residents as terrorists.

As Arab and Muslim communities were subjected to institutionalized racial profiling, this too frequently encouraged individual anti-Arab and Islamophobic actors who further intimidated and committed acts of violence against Arab and Muslim individuals in everyday life. Between 2000-2009, these violent incidents increased by over 500 percent; since 2016, 484 incidents of hate-motivated violence have been reported and many continue to remain unreported. In the Middle Eastern, North African and South Asian regions, of course, the U.S. military killed people en masse while engaging in torture. The U.S. government also supported authoritarian dictators like Egypts Hosni Mubarak who would further the U.S. imperialist agenda and simultaneously collaborate in the ongoing colonization of Palestine and siege of Gaza.

According to the Project on Government Oversights Jake Laperruque, the U.S., in its rush to crack down on these domestic communities, swept up international communications on an enormous and unprecedented scale. Laperruque also notes that internal U.S. communications were surveilled, as were internet metadata.

When eventually disclosed, this surveillance troubled and infuriated people across the political spectrum, some who cared about ending racial profiling of Arabs and Muslims, and some who generally had spent years inflaming such hatred. Many strands of society were incensed that their communications were being monitored by the government. Yet those with history in U.S.-based Global South liberation movements who were targeted by programs like Nixons Counter-Intelligence Program (COINTELPRO) or those whose ancestors were killed via collaborations between the KKK and the FBI knew all too well that the Constitution was meant to protect white supremacy rather than protecting us all. At the same time, the Patriot Act truly alarmed liberals and radicals alike in its potential to perpetrate a massive expansion in policing, surveillance and repression.

The George W. Bush administration had effectively circumvented the Fourth Amendment with its protections against unreasonable searches and seizures.

Attempts to override the entirely bankrupt legislative action of the USA Freedom Act of 2015, was a consequence less out of concern over targeting Muslims and Arabs than anger over the widespread sweeping up of so much information about U.S. citizens read: white people.

I lived through these past 20 years between communities in California, Illinois and Michigan. The fear was real. While working-class Arab Muslim immigrant men over the age of 16 were forced to register at their local Immigration and Naturalization Service office as part of the NSEERS program, their loved ones stood outside wondering if they would ever see them again.

The reports of violence against Arabs and Muslims and those perceived to belong to those categories were terrifyingly routine. Some stories reached the mainstream media; most circulated simply through word of mouth.

Now, in 2021, following the defeat of former President Donald Trump and his open promotion of anti-Muslim policies, we are witnessing the culmination of efforts led by Muslims and Arabs in the U.S. to build community-based power beyond the psychological and emotional incarceration endured between the Bush and Trump years.

The Arab Resource & Organizing Center in Californias Bay Area along with the Arab American Action Network in Chicago have for years fought back in coalition to support anti-imperialist and abolitionist principles. Left-leaning Arab and Muslim movements are affirming that just because Trump is out doesnt mean these efforts will relent under President Joe Biden, especially not with his interventionist history and long years of support for Israelis colonial policies that have been killing, containing and displacing Palestinians with U.S. weaponry.

These organizations recognize that U.S. empire-building connects movements fighting anti-Black police violence, those pressing back against anti-Arab U.S. militarism and the war on terror, as well as groups resisting the militarization of the border and the ongoing colonization of Native land.

The recent news out of Virginia Beach of an ongoing racist attack on a Black familys home with music blaring racial slurs and monkey sounds as strobe lights flashed at the house while authorities dithered sounded all-too-familiar to me. It reminded me of my own research in 2021 with the Institute for Research on Race and Public Policy in the Chicago area on the status of racial justice for Arab Americans.

I had been connected to a Muslim woman who was harassed by her neighbors for three years, notwithstanding a restraining order. She told me she felt like a hostage in her own home and police were unwilling to stop the ugly attacks from neighbors coming up to the window and shouting, Fk Arabs, fk Muslims. This would be followed by calls for the family to get out of the U.S.

The animosity both families have faced is painful and traumatic and stems from the same root cause U.S. racial capitalism and empire building. But younger generations of Black people, Arabs and/or Muslims have also in the last decade recognized more than ever the necessity of conjoining our struggles against racist police violence.

This was seen most visibly in Ferguson, Missouri, but is also witnessed, for instance, in Palestinian-Black solidarity efforts across the country as young Palestinian Arab activists organize against police violence disproportionately targeting Black people, while Black activists align with the Palestinian call for boycott, divestment and sanctions against Israel.

As the Palestinian Youth Movement said in its 2014 statement of solidarity with Ferguson: Whether the PATRIOT ACT or COINTELPRO, the targeting and criminalization of our communities must end now. These efforts have extended through defund the police and abolition efforts uniting both communities.

Shortly after 9/11, I remember the national coalitions like Racial Justice 9/11 that grew overnight when tens of social movements affirmed their unity in the face of the expanding powers of the U.S. nation-state. Today, similar coalitions are inspired by the shared concern over the ways U.S. counterinsurgency tactics that repress movements have expanded, violently justifying the repression of Black, Indigenous and people of color (BIPOC)-led groups like the Movement for Black Lives.

When the Bush administration consolidated its internal war on Arabs and Muslims with the Patriot Act, it helped show Trump the power to move a portion of the U.S. public toward increasingly outward-facing white supremacy. Yet it also set in motion new coalitions. These coalitions have urgently grown out of the imperialist and racist policies implemented first by President George W. Bush, and then even more openly by Trump.

I wouldnt wish those first traumatic months in 2001-2002 on anyone. Yet the solidarity resulting at least in part from the overreach and unconstitutional nature of the Patriot Act, followed by the racism of the Trump administration, gives me a measure of hope.

For all Trumps efforts to roll back previous social movement wins, many breakthroughs came out of his 2016 presidential victory. More and more grassroots mutual aid movements have materialized, affirming the necessity of growing practices of collective love and reciprocity as alternatives to state violence. Two Muslim women, one Palestinian and one North African, entered the U.S. Congress in 2019 in Palestinian American Rashida Tlaib and Somali American Ilhan Omar. They were joined earlier this year by Rep. Cori Bush, who was active in the Ferguson demonstrations and has openly spoken of solidarity between Black Americans and Palestinians.

In the midst of the Israeli onslaught against Gaza this past May, Representative Bush tweeted: The fight for Black lives and the fight for Palestinian liberation are interconnected. She added: We oppose our money going to fund militarized policing, occupation, and systems of violent oppression and trauma. Tellingly, she spoke of being anti-apartheid.

Their voices in the halls of Congress are unprecedented. The effort to undermine them is intense. Yet we must remember that the long U.S.-led war on terror is an extension of the U.S.s colonial, expansionist and racial capitalist project, rather than an exception. We cannot get stuck in celebratory hope after the defeat of Trump. Presidents Bill Clinton and Barack Obama were not only complicit in the war on terror but also helped expand it.

As Kali Akuno, Brian Drolet and Doug Norberg posted on Facebook on October 27, in their critique of efforts to save democracy, this stance is not an argument to avoid or ignore fighting the further advance of fascistic authoritarianism. It is a critique of a view that restricts people to fighting against certain variants of capitalist governance to the exclusion of fighting against the capitalist system itself.

If anyone recognizes that President Biden does little to help the U.S. achieve democracy, equality or diversity, its my Arab immigrant community. Further, there is no sign of social transformation with Trump continuing to loom on the 2024 horizon and racist provocateurs continuing to organize and contest the 2020 election of a centrist candidate. This is why we need to be willing to imagine a radically alternative future.

Twenty years ago, I remember Arab activists like Rana Elmir demanding an end to the Patriot Act. Forced to reckon with it, they understood its potentially dangerous future. They shouted at protests that it not only expands the containment, repression, and profiling of Arabs and Muslims, but could also massively expand the U.S.s power to repress all progressive and BIPOC communities.

So here we are. Nicole Nguyen, expert on surveillance and the war on terror, reminds us that by expanding the concept of the violent extremist the United States has repressed resistance against the war on terror and resistance against the police.

In the face of this repression, we have no choice but to expand our practices of solidarity, creating hope through the convergence of shared struggles for liberation rooted in collective BIPOC traditions of care, nurturing relations with the land and each other, and in commitments to horizontal, non-hierarchical self-determination.

Continue reading here:
20 Years After Patriot Act, Surveillance of Arabs and Muslims Is Relentless - Truthout

The Supreme Courts 2018 decision in Carpenter v. United States was widely considered to be a sea change in Fourth Amendment law. Carpenter held that individuals can retain Fourth Amendment rights in information they disclose to a third party, at least in some situations. Specifically, cell phone users retained Fourth Amendment rights in their cell phone location data, even though that data was disclosed to their cell phone companies.

This is a potentially revolutionary holding in the internet era, when virtually every form of sensitive digital information is exposed to a third-party service provider at some point. Carpenter raises the possibility that the Fourth Amendment may effectively protect sensitive digital data. But Carpenter is a notoriously vague opinion, and scholars have reached conflicting conclusions about its meaning and impact. What does Carpenter mean, and what will it mean in the future?

In a recent article forthcoming in the Harvard Law Review, I attempt to shed some light on Carpenter and its jurisprudential impact. I coded and analyzed all 857 federal and state judgments applying Carpenter through March 31, 2021. In doing so, I was able to identify the factors that drive modern Fourth Amendment search decisions and describe a nascent Carpenter test now emerging in the lower courts. I also examined overall compliance with Carpenter, finding that courts have largely embraced it, with almost no overt criticism and relatively little indirect noncompliance. And I encountered a shockingly high rate of cases resolved based on the good faith exception to the exclusionary rule, which permits the government to use unconstitutionally obtained evidence to convict defendants if such evidence was collected in reliance on prior law. These findings can help resolve some of the mysteries of Carpenter, illuminating both the present state of the law and the paths along which it will likely continue to develop.

The Carpenter Factors

Prior to Carpenter, information that an individual disclosed to a third party was not protected by the Fourth Amendment. Carpenter imposed at least some limits on this third-party doctrine going forward. But it did not set out a clear test for when third-party data is covered by the Fourth Amendment.

It did, however, describe several factors that were relevant to its decision in the cell phone tracking context. The court discussed the revealing nature of cell phone data, which could provide an intimate window into an individuals life and activities. It addressed the large quantity of location data available to the government, encompassing numerous data points per day for potentially long periods of time. It referred to the large number of people who would be affected by unrestrained cell phone surveillance. It described how cell phone data was automatically disclosed to a cell service provider and how cell phones were largely inescapable in modern life, meaning that the disclosure of cellular location data to third parties was essentially involuntary. And it detailed the low cost of cell phone surveillance, which made detailed location surveillance easy and cheap compared to traditional investigative methods.

Any or all of these factors might play a pivotal role in future cases. But, in Carpenter, the court gave no concrete test to guide future decisions; it merely discussed several principles that appeared important in the context of cell phone location tracking. The decision left it for future courts to determine how these principles should apply to novel Fourth Amendment questions. And so, several years after Carpenter was decided, I conducted the examination of lower court decisions described above.

In the dataset, 217 decisions reached a determinative, yes-or-no ruling on a Fourth Amendment search question. A majority (129) of these decisions discussed at least one of the Carpenter factors in reaching a judgment. For example, in United States v. Trice, the Sixth Circuit applied the factor that considers the amount of data captured, and found that it disfavored the defendant. Police officers had installed a hidden camera near a suspects apartment door and recorded four short clips of footage over a six-hour period. The court noted that this technique captured far less data than the detailed, prolonged cell phone tracking at issue in Carpenter. Ultimately, the court ruled that the use of the camera was not a Fourth Amendment search.

Overall, courts cited a variety of factors in cases resolving Carpenter questions, but they rarely discussed all or most of the factors together. Instead, courts often discussed the factors that influenced their reasoning and ignored the other factors, even when those factors might have pointed in the same direction. In determining which factors were most prevalent, my analysis found that the revealing nature of the data, the amount of data collected, and the automatic nature of data disclosure emerged as the most influential factors. The courts addressed the cost of surveillance and the inescapable nature of a technology only occasionally, although those factors were generally influential when they were addressed. Surprisingly, the number of persons affected by a surveillance practice was rarely discussed and had virtually no effect on case outcomes. Indeed, several courts overtly rejected this as a factor.

The revealing nature and amount of the data collected by the government were the most commonly used factors in the cases. Revealing nature was mentioned in 93 decisions, and amount was mentioned in 116 decisions. These factors were also strongly, and statistically significantly, correlated with case outcomes.

Whether a persons data had been automatically disclosed to a third party, or instead had been disclosed through a voluntary act, was a less common but still influential factor in the cases, appearing in 61 decisions and correlating significantly with case outcomes. This factor generally led courts to deny Fourth Amendment protectionsit was found to disfavor defendants in 82.6 percent of cases in which it appeared.

Moreover, as I have argued elsewhere, relying on concepts like automatic disclosure is often problematic. The disclosure of data to services like Uber, Google Maps, dating apps, smart home devices, websites and countless other providers is in theory voluntary and avoidable, but such disclosures are in practice an important part of peoples lives. Moreover, optional technologies such as dating apps, smart home devices and DNA analysis services often capture especially intimate personal information. And voluntariness approaches can create substantial inequalities in Fourth Amendment law. Technologies that are avoidable for most people are often unavoidable for others, including the disabled, the poor and other disadvantaged populations. For all of these reasons, courts should be cautious in definitively adopting automatic disclosure of data as a factor in a mandatory Carpenter test.

By contrast, the cost of surveillance is a potentially useful factor that courts should consider adopting in more cases. Conceptually, cost dovetails with amount. When the government is able to capture large amounts of data at a low cost, the potential for large-scale surveillance raises serious concerns about individual liberty and government power. By assessing the general cost of a surveillance practice, courts may be able to address concerns about large-scale surveillance programs via a relatively simple and administrable analysis.

Lower Court Compliance With Carpenter

Across more than 800 cases, courts have largely embraced Carpenter and its analysis. They have engaged in almost no overt criticism of the decision and its unique approach. And they have demonstrated relatively little indirect noncompliance. The law is still developing, but Carpenter appears to be workable in the lower courts.

Since June 2018, very few cases addressing the third-party doctrine have failed to cite Carpenter, suggesting that recognition of the case is widespread. There is circumstantial evidence of some courts engaging in indirect noncompliance with Carpenter. Indirect noncompliance refers to courts intentionally misinterpreting controlling precedent in order to reach a preferred outcome. In the dataset of 217 determinative search decisions, 29 decisions (13.4 percent) applied a strong version of the third-party doctrine that was arguably in tension with the Carpenter opinion, which imposed a meaningful limit on that doctrine. These opinions might represent a small pocket of resistance toward Carpenter, albeit a subtle, indirect resistance.

But judicial inertia toward a prior status quo is a common phenomenon, following a major legal change, and its occurrence here should not be too surprising. And, as theories of indirect noncompliance would predict, indirect noncompliance with Carpenter appears to be decreasing over time. The proportion of determinative cases that invoke a strong third-party doctrine has fallen in recent years, as judges become more familiar with Carpenter. In any event, the vast majority of cases show no explicit or even implicit resistance toward Carpenters reformation of the third-party doctrine.

The Enormous Impact of the Good Faith Exception

One of the most surprising findings of my analysis was the remarkable impact of the good faith exception on post-Carpenter case outcomes. The good faith exception provides that evidence obtained in good faith reliance on a statute, warrant or other authority will not be excluded, even if the authority was incorrect and the search for evidence was unconstitutional. The idea is that police officers relying on existing legal authority are acting in good faith and therefore cannot be deterred effectively by the exclusion of evidence. There were 399 decisions in the dataset that applied Carpenter substantively in a Fourth Amendment search case, and 144 of these were resolved based on the good faith exception without addressing the search issue, a rate of 36.1 percent. The vast majority of these good faith cases involved government officials obtaining historical cell phone location data without a warrant, the practice declared unconstitutional in Carpenter. In other words, a surprisingly large percentage of post-Carpenter cases involve unconstitutional government searches for which the persons affected have no meaningful remedy.

To be sure, the proportion of cases resolved via the good faith exception will decrease over time, as fewer cases are tried involving pre-Carpenter searches of cell phone data. But roughly 30 percent of cases were still being resolved on good faith grounds in 2020 and 2021, years after Carpenter was decided. Ultimately, it is likely that hundreds of criminal defendants will be convicted on the basis of searches that Carpenter deemed unconstitutional.

The remarkably high proportion of cases resolved via the good faith exception following a major Supreme Court decision should spur a reexamination of the exception. Current law may incentivize the police to aggressively apply new surveillance practices in order to secure convictions, even when those practices are likely unconstitutional. These incentives are examined in more detail in my article. They often involve police reliance on an old, general-purpose statute that is used to justify new and invasive forms of surveillance. Lower courts have applied the good faith exception broadly to justify novel surveillance practices, even when those practices have never been addressed by an existing statute or case. My studys findings should raise alarms about the potential for the good faith exception to incentivize widespread unconstitutional surveillance on the basis of flimsy reliance claims.

***

My articles detailed examination of post-Carpenter Fourth Amendment law yields other insights as well. It breaks down the cases by jurisdiction and examines changes in outcomes over time, while addressing the potential impact of selection effects. It examines differences in federal and state decisions, drawing lessons for federalism theory and debates regarding the capacity of state courts to address federal constitutional questions. It also analyzes the effects of political affiliation and exposure to judicial elections on case outcomes. And it suggests alternative approaches that can help to clarify and improve Fourth Amendment jurisprudence going forward. Indeed, the study opens the door to a variety of new proposals about the future course of Fourth Amendment law, grounded in a deeper knowledge of courts current practices.

More:
The Impact of Carpenter v. United States in the Lower Courts and the Emerging Carpenter Test - Lawfare