Tag Archive for 'search'

Police Need a Warrant to Search Your Cell Phone

In 1973, the U.S Supreme Court held that police do not need a warrant to look inside a pack of cigarettes found in the pocket of a man who had been arrested. This decision was decided for the safety of an officer and to prevent concealment or destruction of evidence.

police need a warrant to search cell phonesJump forty years later to 2014. In the case Riley v. California, the U.S Supreme Court unanimously ruled that the police need search warrants to search the cell phones of people they arrest. This decision was made to help define the Fourth Amendment, which affirms “the right of people to be secure in their persons, houses, papers, and effects from unreasonable searches and seizures” in absence of a warrant.

This decision determined that a person’s cell phone contains more information than a person’s house. A person therefore has a “reasonable expectation of privacy” for the contents in their phone and police should not be able to search an arrestee’s cell phone without voluntary consent or a valid search warrant.

The U.S Supreme Court’s ruling makes total sense in regards to today’s high technology and the arrival of the smartphone. Nine out of ten adults in America own a cell phone and an average person has 33 apps installed. These apps contain email, pictures, bank records, intimate conversations, medical data, and GPS information.

Although officers can generally search any container within an arrestee’s car, a cell phone bears little resemblance to traditional containers. Allowing the police to freely search a person’s cell phone without a warrant would be a significant invasion of privacy, which is excessive and unreasonable under the Fourth Amendment.

Supreme Court to Decide Whether DNA Collection Requires a Warrant

In 2009, Alonzo King was arrested and charged with second degree felony assault in Maryland. As part of the arrest, the police took a sample of his DNA through a cheek swab. The DNA sample was compared to a federal database of DNA samples from unsolved crimes. There was a match. The DNA sample linked King to a 2003 robbery and rape of a woman. Based on the DNA link, King was sentenced to life in prison for rape. The original assault charge was reduced to a misdemeanor.

A state Court of Appeals overturned King’s sentence, finding that King’s 4th Amendment right against unreasonable searches had been violated by the DNA sample taken. Furthermore, according to Maryland law, police can only take DNA samples for felonies, not misdemeanors. The US Supreme Court is now hearing the case in 2013.

It is important to clarify the central issue of this case: whether the police can take DNA samples from persons arrested for a felony. Convicted felons are rightfully subjected to such cheek swabs, but persons who are arrested are still considered innocent until proven guilty. Those who are arrested, but not yet tried, enjoy the same rights as other citizens.

dna Q-tip swabThese rights include the right against unreasonable search and seizures. Most people know that the police cannot search their house without a warrant, but the 4th includes not only homes, but also our actual “persons.” A person’s DNA is their genetic make-up and is what gives that person their physical characteristics. DNA is intrinsically tied to a person’s personal body.  Given that the intent of the 4th Amendment is to protect against excess state intrusion into a citizen’s private life, allowing the police to take a DNA sample of an arrestee without a warrant would undermine a fundamental constitutional right.

The state of Maryland and the Obama administration would counter that this expansion of government power is reasonable under the 4th Amendment. Persons who are arrested are already required to turn out their pockets and give their fingerprints to the police. In addition, DNA samples help shut previously unsolved crimes. Victims will gain closure when DNA puts a criminal in prison. Innocent persons wrongfully accused will be exonerated. DNA samples are a powerful tool for the criminal justice system.

First, taking cheek swabs is significantly different from taking fingerprints or demanding that a person turn out their pockets. Fingerprints are commonly used to identify people and can sometimes link present criminals to past crimes, so prosecutors can be forgiven for believing that an external imprint on one’s skin is somehow the same as the fluids inside one’s body.

DNA, however, can reveal information which a fingerprint does not, information such as genetic diseases or disorders a person might have or will eventually have, certain biochemical personality traits such as their level of thrill-seeking, and even their life expectancy. Essentially, DNA is a massive compilation of personal background information, which in contrast to turning out one’s pockets, is not relevant to a case.

More importantly, cheek swabs and the extraction process are more invasive than taking a fingerprint. Cheek swabs involve sticking a Q-tip inside a person’s mouth. It is not harmful and prosecutors would insist that the process is not actually intrusive. Persons who are arrested and then forced by the police to have an instrument stuck up their mouth would disagree. If the state is required to acquire a warrant to search an area outside of a person’s body (i.e. their house), the state should be required to obtain a warrant to search inside a person’s body as well.

How Hot is Your Pursuit? Courts Revisit Reasonable Searches

At the end of each year, it’s a good idea to look back and reflect on one’s decisions. For the United States Supreme Court though, it just means more petitions to look over. One petition, however, might give the justices a chance to reevaluate one of their previous decisions.

In 2011, police in Kentucky pursued a drug dealer into an apartment complex. Although the police lost sight of the fugitive, they did smell marijuana from one of the apartments. The police knocked on the door and called out “police!” No one answered the door, but the officers did hear sounds coming from inside the apartment. Fearing that evidence was being destroyed, the police entered the apartment and saw Hollis King, as well as his girlfriend, smoking marijuana in plain sight of the door. King was arrested. The drug dealer the police had been pursuing earlier was found in another area of the building.

The quescome back with a warranttion of whether the police could make a search and arrest without a warrant has been a highly contested one. Although the 4th Amendment requires the police have a warrant before a search and seizure is made, there is an exception if the police are in “hot pursuit” of a suspect. The Kentucky Supreme Court had originally ruled that the police could not use the evidence against King because the police had created the situation which caused the police to believe evidence was being destroyed. The Federal Supreme Court, however, overruled the Kentucky Supreme Court.

In an 8-1 decision, with Justice Ginsburg being the odd judge out, the Supreme Court held that the Kentucky high court had to consider the total circumstances surrounding the case, not just the fact the police had created the circumstances. The following year, in 2012, the Kentucky Supreme Court reheard the case and once again found for the defendant. This time, the state Court ruled that the police could not rely on “possible” destruction of evidence, since the officer’s interpretation of the situation was too subjective. The state of Kentucky is re-petitioning the United States Supreme Court to challenge this latest argument.

Although the police should be able to prevent a crime from occurring if they believe a crime is in progress, police being in “hot pursuit” should not be an exception to the warrant requirement if the police are conducting a search outside the pursuit. First, and most obviously, King was not the person the police were pursuing. A criminal should not be able to evade the law by hiding in an apartment, but in this case the police were not even aware of King’s presence until they entered his home. There is a very weak connection between the pursuit and the defendant, so weak that the police should not be allowed to rely on the pursuit for the warrantless search.

The police would reply that the connection is strong enough. Both the suspect and the defendant were committing a similar crime, possession of marijuana, and the suspect had fled into the building King was residing in. The police had to search the building if they wanted to capture the drug dealer, and it is probable that the suspect would be where the marijuana was. I find it unlikely though, that the drug dealer would stop in his escape attempt to smoke a joint. The search of King’s apartment was a pit stop to apprehending the criminal the police were pursuing. Given that drug crimes are typically non-violent crimes, the police could have obtained a warrant if they wanted to search the King residence.

Second, I would not leave it to police discretion to determine when the warrant requirement should kick in. The purpose of the Bill of Rights is to limit state power. Allowing the police to make their own judgments regarding enforcement of a rule designed to inhibit the police is contradictory to the right of citizens to be secured in their own homes absent a warrant. The state of Kentucky might say that procedure should not be a barrier to the fact that King was actually committing a crime. Kentucky would say that the proper course of action is to punish the police officers for breaking the law, rather than allow the defendant to walk free on a technicality.

That recommendation, however, is absurd. Punishing the police officers instead of allowing the defendants to go free is no guarantee that the police will not continue to violate other citizen’s rights in the future. Many officers may decide that the risk of suspension or even termination is worth putting more criminals in jail. More importantly though, individual rights, which the warrant requirement is one of, should focus on protecting individuals rather than punishing the police. Hopefully the United States Supreme Court will remember that the judiciary is the branch of government tasked with protecting individual rights and the Justices will make liberty a New Year’s Resolution for 2013.

Drug Sniffing Dogs Go To The Supreme Court

The old saying is that a dog is a man’s best friend, but this proverb wouldn’t apply if the best friend assisted in getting the man arrested. The use of dogs has continued to climb since the Supreme Court announced in U.S.  v. Place (1983) that the use of dogs to find drugs was not a search under the Fourth Amendment’s prohibition against search and seizures without a warrant. However, the latest case before the high Court asks whether the use of dogs triggers the other half of the Fourth Amendment: obtaining a search warrant through probable cause.

In 2006, Florida police received a tip that Joelis Jardines was growing marijuana in his home. A few weeks later, the police created a parameter outside Jardine’s house. They had Franky, a dog trained to find drugs, sniff the front porch of the home.  When Franky confirmed the drug tip, the police knocked on Jardine’s door. Although Jardine didn’t answer, the officers could smell marijuana. The police returned a few hours later with a warrant. Jardine, meanwhile, attempted to flee through the back door but was caught and arrested.

At trial, Jardine’s attorney conviced the judge not to allow any evidence obtained from the search; the defense counsel argued Franky was not enough of a probable cause to permit the use of the warrant. The case has slowly gone through the Florida judicial system, until it has finally reached the nation’s highest court.

Preceding case law appears to be on the government’s side, but is much more conflicted than the first few cases suggest. In 1983, the Supreme Court ruled that the use of dogs did not constitute a search. In Illinois v. Caballes (2005), the use of dogs in routine traffic stops was considered legal, based on the idea that the stop was already legal to begin with and that the use of the dog was legal provided that it wasn’t unreasonably invasive of the person’s privacy. However, the Supreme Court has also ruled that the police cannot violate the privacy of the homeowners through the use of invasive technology, such as thermal devices. Kyloo v. United States (2001).

Unfortunately for Mr. Jardine, the Supreme Court is likely to strike down the trial court’s order to exclude the evidence collected. Although a citizen can expect a certain amount of privacy in their home, Franky was simply outside the front door when the area was examined. The Court denied the constitutionality of thermal devices because the device allowed the police to look into the house. In this case, Franky was detecting the odors leaving the house. Given that the officer himself could smell the drugs once he knocked on the door, it wasn’t a matter of the police looking into the house so much as the defendant’s crime being noticeable from outside the house’s walls. It’s important to note that the use of dogs is not considered a search while the use of the thermal devices was.

 The Court will likely limit the use of dogs to a “reasonable expectations of privacy” again. Oddly, this was the point raised by the lower courts in Florida: the use of the dogs was invasive of property. The police enclosed the area around the defendant’s house before obtaining the warrant. It is also highly questionable if placing dogs in front of a person’s house wouldn’t be invasive of privacy. The Court has created a “front door” test, limiting privacy questions to everything inside the house rather than on the property as a whole.

The ultimate question though, and one which dissenting justices on the Supreme Court has raised, is whether dogs are truly a reliable means to detect drugs. Dogs can be trained to find drugs, but the assumption that a dog can never be wrong is a dangerous one when the issue of personal liberty is at stake. A dog’s sense of smell is much more accurate than a human’s, but it would be legally safer to rule that the officer smelling the marijuana was a better reason to ask for a warrant. That opens up its own can of worms though, as some judges might not want to extend the “plain sight” doctrine to an officer’s nose as well. Given the alternatives though, relying on an officer’s senses while the officer is standing outside the defendant’s front door is better than relying on a dog who cannot testify on its own reliability.

Delta Airlines And The TSA Have A Zero Tolerance Policy Against Joke T-Shirts

American airport security measures are an unfortunate fact of life that we’ve all begrudgingly come to accept.  They’re presented to the public as a necessary measure to ensure safety and prevent terrorism.  Ideally, TSA and airline workers are meant to be impartial facilitators of airline security, weeding out potential threats fairly and efficiently.  Unfortunately, the reality remains far from the ideal.

The latest WTF tale of the inappropriate airport security comes courtesy of Delta Airlines.  Arijit Guha, an Arizona State University Ph.D. student, was getting ready to board a Delta flight in Buffalo, New York with his wife.  He was traveling back home from a funeral and everything was going the status quo until a Delta pilot decided to throw him and his wife off the plane.  Definitely not the best way to end a funeral trip.

So why was he kept off?  Apparently, it was because of the t-shirt Guha was wearing.  Guha’s shirt featured a logo mocking the TSA.  The internet lingo laden attire, shown here, sported the words “Bombs ZOMG/ZOMG terrists, gonna kill us all ZOMG ZOMG alert level bloodred run run take off your shoes moisture,” lined the circumference of a faux TSA logo.  Guha was told that his shirt had made passengers and employees nervous.  And of course, the logical next step was to keep him and his wife off their flight while airport agents grilled him with questions about the shirt.  Red flags were allegedly raised because Guha wasn’t the one who bought the shirt and his wife didn’t share Guha’s surname.

Another win for Delta and the TSA; they’ve kept the country safe from another joke t-shirt.  Maybe next week they’ll take out a party hat distribution ring.

Seriously though, at this point there are so many stories of crazy things done for the sake of airline security that most people don’t even flinch at them anymore.  Back when this kind of insanity first began, a story like Guha’s could’ve made the front pages.  Now it’s just another one for the pile.

In case you guys didn’t know already, making jokes at the airport isn’t illegal.  It might be insensitive and/or occasionally in poor tastes, but the action doesn’t break any federal laws.  But it doesn’t seem like the airlines or the TSA care much about clarifying this unfortunate legal myth.

While any savvy flyer knows that airport security is free to perform a number of legal searches on you and your luggage, most aren’t aware that detaining you for bad jokes, even ones about bombs, isn’t necessarily legal.

You’ve no doubt seen signs and heard announcements at airports telling passengers that inappropriate jokes aren’t tolerated and can result in civil or criminal penalties.  However, federal law only prohibits providing false information “willfully and maliciously, or with reckless disregard for the safety of human life.”  In other words, it’s a prohibition against hoaxes that can cause public panic, like calling in a fake bomb threat.  The law isn’t meant to punish people making jokes.

While one could argue that there’s little distinction between jokes and a fraudulent security threat report when it comes to airline safety, the fact is that the difference between these two things is quite apparent.  Jokes are done spontaneously or in a moment of time in which the listener can clearly tell what’s being said isn’t meant to be taken seriously.  Hoaxes on the other hand are premeditated to result in planned chaos.  They are, by nature, meant to be malicious, whereas jokes aren’t.

In Guha’s case, the distinction is even more apparent.  His alleged threatening action was, in essence, a passive one.  After all, he made no verbal comment to passengers or airline workers, rather it was his t-shirt that stirred up the controversy.  And nothing is more clearly meant to be a joke than a parody t-shirt.  Also, if he really were a terrorist, would he really be dumb enough to advertise it on his clothes?

But maybe, that’s exactly why he wore that shirt.  Because it would be so un-terrorist like that he’d be able to fly under the radar and carry out his diabolical plan to hijack an airplane and airport security thwarted his plan.

That, or he just thought his shirt was funny.