Supreme Court rules that warrants are required for cell phone location data

Law Enforcement Need Warrant To Gain Access To Cell Phone Data

cell phone law enforcement

“When the government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user”

A recent Supreme Court ruling limits the ability of law enforcement to obtain cell phone data that tracks the past locations of criminal suspects without a search warrant. The Court stated that police need a court approved warrant to get access to cell phone data that tracked the previous locations of a suspect.

Timothy Carpenter was convicted of several armed robberies in Ohio and Michigan with the help of past cell phone location data that linked him to the crime scenes. Justice Roberts’ opinion stated “We decline to grant the state unrestricted access to a wireless carriers’ database of physical location information”.

Ruling In Unrestricted Cell Phone Data Access Protects Privacy For Individuals And Is A Blow To Law Enforcement Surveilance

This ruling is a victory for individual privacy rights during a time when there is an increased concern over surveillance procedures of law enforcement and other intelligence agencies.

Justice Roberts further opined “that a cell phone is almost a feature of human anatomy and that a cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctors’ offices, political headquarters and other potentially revealing locales”.

As a result he said “when the government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user”. (Carpenter v. United States).

Fourth Amendment “Automobile Exception” Remains Limited

Huge win for advocates of the Fourth Amendment

fourth amendment automobile exception

The Fourth Amendment’s purpose is to protect the interest and privacy of the home and its curtilage first and foremost

INTRO

On May 29, 2018, the Supreme Court of the United States issued a decision that states that the police cannot search a car parked on private property without a warrant. This is in effect despite an exception to the warrant requirement of the Fourth Amendment that applies to automobiles. Justice Sotomayor writing the opinion for the majority declines to extend the Automobile Exception to vehicles that are parked within the curtilage of a home as it is not justifiable to intrude on a person’s privacy interest in his home and curtilage.

WHAT HAPPENED?

After the driver of a black and orange motorcycle with an extended frame alluded the police for two traffic violations, officers of the Albemarle County Police Department conducted an investigation. This resulted in finding out that the motorcycle was likely stolen and in the possession of a Ryan Collins (hereafter, “Collins”). They were even able to find photographs of the motorcycle and Collins on Facebook that led them to believe that the bike and Collins were at his girlfriend’s home.

An officer drove to the home and parked on the street to do some surveillance. As it turns out, there seemed to be a motorcycle with an extended frame covered by a tarp at the top of the driveway. The bike was even parked in the same location and the same angle as it was in the Facebook photos. The officer’s actions that followed this surveillance are what this case is primarily about.

After the officer observed what he could from the street, he took a photograph from the sidewalk and then proceeded to walk onto the residential property of Collins’ girlfriend’s home. He walked up the driveway to where the bike was parked. He then pulled the tarp off which revealed a bike that looked just like the one from the two traffic violations. The officer then ran the plates and its VIN which confirmed that the bike was in fact stolen. Once he took a photo of the bike, he recovered it with the tarp and went back to his vehicle. He waited there until Collins returned home. Shortly after, Collins was arrested.

At the lower court, Collins attempted to have the evidence obtained from a warrantless search of the motorcycle suppressed by arguing that the officer trespassed on the curtilage of the home and violated his Fourth Amendment rights. However, this motion was denied and he was found guilty. Collins was convicted of receiving stolen property which both the Court of Appeals of Virginia and the Supreme Court of Virginia affirmed, though for different reasons.

The Court of Appeals believed that the officer had probable cause to believe the motorcycle was the same one as from the traffic infractions and that his actions were justified by “numerous exigencies” allowed by the Fourth Amendment. The Supreme Court of Virginia however believed that the officer’s actions were protected by the “Automobile Exception” to the Fourth Amendment’s warrant requirement. The Court said that the officer had probable cause to believe the motorcycle was contraband and that the warrantless search was justified on those grounds.

SO WHAT’S THE BIG DEAL?

Under normal circumstances, the Fourth Amendment requires the police to obtain a search warrant in order to conduct a search. While there are a few exceptions to this rule, the one in question today is one that applies to cars, known as the “automobile exception.” This gives the police the ability to search a vehicle without a warrant as long as they have probable cause to believe there is evidence of a crime inside and if the car is what they call “readily movable.”

As previously mentioned, the Supreme Court of Virginia believed that the officer’s actions fell under the automobile exception and were therefore justified. However, the Supreme Court of the United States declined to extend the exception to justify intrusions made on the curtilage (The area immediately surrounding a home) and reversed the decision made by the Supreme Court of Virginia.

It seems that the Court was trying to find a balance between the right to privacy within the curtilage of one’s home and the justification for the automobile exception of “ready mobility” of cars. As a result, the majority ruled that the right to privacy is not displaced by a police officer’s need to search a vehicle when it is within the curtilage of a home. The Fourth Amendment’s purpose is to protect the interest and privacy of the home and its curtilage first and foremost. Not even the justifications for the automobile exception can trump that.

WHY DOES THIS MATTER?

This was a huge win for advocates of the Fourth Amendment because it is keeping the protections given to us as citizens broad and the exceptions the police can use limited. As for this case, Collins isn’t entirely in the clear. While the Court reversed the decisions made by the lower courts, they also sent it back to the state courts for more proceedings. Virginia will have another chance to win its case against Collins, but it would have to be under another theory – possibly a different exception to the warrant requirement. If anyone is interested in reading the full opinion of the court, the case name is Collins v. Virginia and you can find the court opinion here.

EDITOR’S NOTE: I want to thank our Summer extern, Ashlyn Gallant for all her research and writing of this blog article! Ashlyn is in her third year of law school at the University of Dayton School of Law.

More Alternatives to Prison on the Horizon

Back in 2014 when the Ohio legislature overhauled the felony sentencing scheme with H.B. 86, it was clear that politicians were motivated to stem the tide of persons being sent to prison for so-called “low level, non-violent offenses.”  As part of the new legislation, courts were constrained in their ability to send offenders to prison, under certain circumstances, for non-violent felonies of the 5th and 4th degree.  The extent to which this legislation has been effective in reducing the prison population is debatable, but it nonetheless signaled a realization that perhaps prison is not always the appropriate punishment for certain types of felons.

I say the results are debatable because in my experience, very few courts were sending these types of offenders to prison anyway.  Most judges were willing to give non-violent, first time felons a chance at community control (probation).  But, there are judges that seemed too quick to send defendants to the penitentiary, and at least in these counties, judges had to work harder to impose such sentences.

Well, the legislature has not stopped with H.B. 86 in its effort to find alternatives to prison.  One of the more recent ways in which the legislature has acted on this front is with a program called “TCAP,” which stands for “Targeted Community Alternatives to Prison.” On June 30, 2017, Governor Kasich signed into law a budget bill (H.B. 49), which among other items, further restricted the ability of common pleas courts to sentence low-level felony offenders to prison in the first instance for counties participating in TCAP.

Additionally, the revised sentencing statutes also also restrict the judge’s ability to send felons to prison for the entirety of the reserved prison terms after violating the terms of their community control. Let’s talk about both of these important changes, starting with TCAP.

TCAP started initially as a pilot program in a handful of counties; but, beginning July, 2018, the 10 most populated counties in Ohio are required to participate in this initiative.  Essentially, courts are given monetary incentives to find alternatives to prison.

Counties that are required to or voluntarily decide to participate in TCAP are generally prohibited from sending F5 offenders to prison if their sentences for felonies of the fifth degree is twelve months or less.  There are exceptions, of course, including sentences imposed for F5 sex, violent or drug trafficking offenses.  Additionally, if the offender has a previous conviction for a sex or violent offense, the judge can send an F5 offender to prison for a 12 month sentence.

In exchange for these sentencing limitations on F5 offenders, TCAP counties will receive block grant funding from the Ohio Dept. of Rehabilitation and Corrections, based on a pre-determined formula (that is outside the scope of this post).  In short, ODRC will help pay for alternative programming that is utilized by the sentencing court in lieu of sending someone to prison.  It is important to note that in order to be TCAP eligible, the judge must determine that the offender is someone that would ordinarily be sentenced to prison as opposed to being granted community control.

And, as previously noted, the new sentencing scheme also restricts a court from sending an offender that is on community control to a lengthy prison term should he violate those terms.  Essentially, if an offender is placed on community control for a 5th degree felony and subsequently violates his community control, the court can only send that person to prison for 90 days (as opposed to 6-12 months) if the violation is “technical” or the commission of a misdemeanor offense.  Similarly, if an F4 defendant violates community control, a judge can only send the person to prison for 180 days (as opposed to 18 months) as long as the violation is “technical” or a misdemeanor.

Curiously, however, there is no definition of what constitutes a “technical” violation.  Does it mean failing to report? Failure to obtain employment or complete required treatment?  Or, does the term “technical” extend to having a positive drug screen?  At this juncture courts and the defense bar do not have a complete handle on this aspect of the revised sentencing statutes.  But, you can be sure defense attorneys will be arguing that a great many violations are merely “technical.”  Sooner or later there will be a judicial gloss on this term, or the legislature will have to provide better guidance.  Nonetheless, it is apparent that our elected representatives are further attempting to restrict the number of low-level felons that go to prison.  Will it work?  Only time will tell.

Ohio’s safe haven law – teens should take advantage

There has been another high-profile case involving a pregnant teen accused of killing her newborn baby.  Now, it needs to be made absolutely clear that this blog is NOT claiming that the teen caused the death of the child.  The defendant in this case is claiming the baby was still-born.  As we are not privy to the evidence, and she has not been convicted after the state has been put to its proof at a trial, we will presume that the young lady is innocent, as required under our constitution.

However, the linked article mentioned a little-known provision under Ohio law that allows parents of a newborn to effectively give up their child and face no adverse consequences. The theory behind “Ohio’s Safe Haven’s” law is to encourage parents that don’t want or cannot provide for a newborn to voluntarily surrender the child rather than, say, bury the child in the back yard.  The statute allows a parent to “voluntarily deliver his or her child who is not older than thirty days, without intent to return for the child, to a person specified in section 2151.3517 of the Revised Code or a newborn safety incubator … .”

Parents can deliver the child to places such as a fire department or a childrens services agency.

If the statutory requirements are followed, the parents have immunity from prosecution for effectively abandoning their newborn (remember, parents would otherwise have an absolute legal obligation to provide for their offspring, absent a court order reallocating their responsibilities).

More specifically, R.C. 2151.3525(A) provides the following:  “A parent does not commit a criminal offense under the laws of this state and shall not be subject to criminal prosecution in this state for the act of voluntarily delivering a child under section 2151.3516 of the Revised Code.”

It is important to note, however, that the immunity is not absolute. If state officials determine (or even believe, really) that the child was subject to any form of abuse or neglect, prosecution can still be had.  What provision “(A)” giveth, provision “(B)” can taketh away: “A person who delivers or attempts to deliver a child who has suffered any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of the child is not immune from civil or criminal liability for abuse or neglect.”

Because “neglect” is not necessarily a very high burden to meet, quite frankly, there is a fairly large hole in the statute’s immunity provision.  Let me put it this way, let’s say a 16 year girl gives birth to a newborn and is scared to death. She has hidden the pregnancy from her parents and friends and does not know what to do.  Let’s further say that the child was born with some form of medical condition that needs immediate attention in order to prevent death or some injurious consequence, something not that uncommon.  Let’s further assume that after much anguish and debate, the young mother delivers the child to the local fire department and drives away one day after given birth, but too late in the game for the needed medical intervention to have taken place.

Because the fire department is one of the approved locations a parent may ‘deliver” a child under the Safe Haven’s Law, the young girl would ordinarily be immune from prosecution.  But in our hypothetical scenario, a creative prosecutor could make out a case that the mother engaged in neglect, thus removing her from the immunity provision.  Such a scenario could also arise where the child was malnourished; remember, the mother would have 30 days to effectuate the surrender.  What if she was without formula and could not successfully breast feed for a few days before delivering the child?  The statute doesn’t require much by way of injury to remove immunity.   “Any” injury or condition that “reasonably” indicates neglect would suffice.

All of this is to say that it is important for more Ohioan’s to know about this law and to advocate that young mother’s to take advantage of the law when applicable.  But, a young mother also needs to be cognizant that there is not absolute immunity.  If the state of Ohio determines that the child has suffered an injury that indicates neglect (would dehydration suffice?), she can then be prosecuted.  Would a prosecutor initiate such a case? One would hope not, but then again, ridiculous prosecutions abound on a daily basis all across this country.

 

 

 

Domestic Violence – often a misnomer

I have written before that domestic violence is one of the most over-charged offenses in Ohio – probably the nation – given politics have corrupted common sense.  What do I mean by this?  Well, the police and prosecutors charge folks with domestic violence when, in reality, no one in their right mind would actually describe the conduct underlying the charge as “violent.” Are they wrong for doing so?  In one sense, yes: a person should not be facing 6 months in jail, a $1,000.00 fine and other collateral consequences for literally pushing their significant other out of the way or poking them in the chest, for example.  Yet, that constitutes domestic violence.  This is a shock to many, which is why innumerable clients’ significant others have begged and pleaded that charges be dropped once cooler heads prevailed.  Does the State listen to the pleas of the “victim”?  Sometimes, but far too often they do not.  In fact, it is not uncommon for prosecutors, detectives, and “victim’s advocates” to actually bully the victim – all in the name of protecting them.   How does this happen?

A common scenario goes like this: husband and wife are arguing, it gets heated, and eventually they start physically struggling in some form or another.  There are no punches thrown, there is no wielding of a weapon, but just pushing and shoving, etc.  No one has any injuries, no medical attention is needed, they are just so upset with each other they can’t stand it.  In effort to stop the arguing, one or both of the participants calls 911 – BIG MISTAKE.  Once the police are involved, the husband is going to jail.  Although both parties do not have any visible injuries to speak of, refuse any medical treatment, if the police are told that there was even the slightest bit of touching, they are going to arrest, period.  Cops don’t show up to not arrest people, that is what they do, especially now that there is a mandatory arrest directive in cases of suspected domestic violence.  It is like asking a a lion to not eat a steak sitting right under its nose, it isn’t going to happen. In short, I hear all the time that the wife “only wanted the police to make him leave for a bit to cool down, or to “come and tell him it is not ok to yell at me.”  But once the police are involved, the victim’s intentions are irrelevant.  The lesson here is that you should not involve the police unless you are actually in fear of suffering violence; do not attempt to use the police to negotiate peace in the home because the husband will be charged. Even if there is no actual injury? Yes.

The reason is that under Ohio law, there doesn’t actually have to be any real harm caused to the “victim.”  Courts routinely hold that the “harm” required by statute can be “slight” or “fleeting.”  In addition, the statute allows a conviction for attempting to cause harm, which means the scenario of a single push will suffice.  This is why I say that domestic violence is often a misnomer, as no person using ordinary language would describe conduct that falls under that statute as “violence.”

To be sure, I have represented plenty of guys that have caused significant injury, significant harm to their wives and girlfriends such that all of use would say he was violent. but the point I am trying to convey is that not all domestic violence cases are created equal.  Just because a guy is charged with domestic violence doesn’t mean he beat the hell out of his wife.  It could mean that he pushed her or poked her in the chest, or attempted to do so.

The state of Ohio, however, sees it all as “violence.”