We have written several times in this blog about the awe-inspiring technologies coming online for use by federal and state law enforcement and the threats that these technologies poses to Fourth Amendment rights. But in law enforcement, as in life, sometimes the old ways are still the best. In terms of detecting the presence of contraband narcotics, no new technology has yet to supplant the utility of a well-trained, properly handled drug-sniffing dog.
This past Monday, Wegelin & Co, said to be Switzerland’s oldest private bank, was ordered by a federal judge in New York to pay a fine of $74 million dollars for its violation of U.S. tax laws. For American taxpayers with undisclosed offshore accounts, this was another decidedly unhappy development in a string of unhappy developments.
Starting in 2009, when it reached a landmark agreement with UBS AG that for the first time breached Swiss bank secrecy, the government has been energetic in its pursuit of tax evaders who use foreign institutions in aid of their crimes. This shows no sign of letting up; to the contrary, the effort seem to be accelerating.
The Fourth Amendment sets forth every citizen’s right to be free from unreasonable searches and seizures. The two active verbs in the Amendment (i.e. search and seize) are often lumped together, as if part of an indivisible act or one legal concept.
But they are not. In any one case, a search and/or a seizure can occur singly or in combination and can differ in timing, order and consequence. While there is some surface logic to the assumption that a valid search will inevitably beget a valid seizure, this is just not the law.
Continue reading “Under the Fourth Amendment, Can a Particular “Search” be Lawful, But an Accompanying Seizure Be Unlawful? The Supreme Court Says “Yes” and Explains How in Bailey v. United States of America”
The Fourth Amendment prohibits the government from conducting searches of “persons, houses, papers and effects” absent the imprimatur of a warrant from a judge. Does this protection extend to the veins in your arms and the blood within?
One would hope so. It is hard to imagine many acts more intrusive and intimate than the drawing of blood. It is bad enough when done by your own doctor or a nurse, but should the state be able to do it without advance judicial permission?
There used to be a day when (for the otherwise law-abiding) a messed with suitcase was the worst thing you were likely to encounter on a pass through Customs into United States. Sadly, this is no longer the case.
The federal United States Customs and Border Protection agency is part of the Department of Homeland Security. We live in a perilous world and there are pressing security concerns at our nation’s borders.
But how should security priorities, albeit valid ones, interact with the array of electronic devices that seemingly all travelers now carry as a matter of routine? A quick and unscientific survey at LAX over the recent Thanksgiving weekend yielded an almost uncountable number of laptops, tablets, telephones, and other depositories of electronic information, of varying makes, sizes and capabilities.
It is a fair assumption that much of the information imprinted in or accessible by these devices is uniquely personal to the holder or is business related and that much of it could not be seized or examined by the government, other than through the traditional tools of warrant, subpoena or summons.
That is, of course, assuming that the possessor of this information is standing inside the United States. But if one is outside, seeking leave to get in, then it is a very different story. Traditionally, the government’s right to search and examine at the border has been far broader and more expansive than “intra-country” searches. Customs officials freely inspect bags, packages and persons. All of this conduct occurs without a warrant and it has always been thus.
The question is: how far can this latitude extend to personal electronic technology and the wealth of data it holds? These limitations are being litigated in various trial courts, as reflected in a story in The New York Times, dated December 4, 2012.
It is the government’s position that in a border search of an electronic device, that Customs officers can keep the device in question for “a reasonable amount of time” and have the right to access all information contained therein, either voluntarily through a password provided by the owner or involuntarily, by other means. No warrant is needed.
It is also estimated that approximately 5,000 such electronic searches occur every year. The “who”, “what”, “when” and “why” of these searches are wholly Customs-discretionary.
But this may change as the cases, now pending, make their way through the courts. A decision is expected soon in the case of Pascal Abidor, an Islamic scholar who was detained as he tried to enter the country from Canada via Amtrak. His laptop searched and held for 11 hours.
In another case, venued in federal court in Minnesota, the government confiscated a laptop, camera and USB drive from a member of a group supportive of the Wikileaks organization and held them for seven weeks. The owner is suing and the judge has denied the government’s motion to dismiss, holding (at least initially), that the traditional latitude afforded the government in border searches does not completely trump the Constitution.
If in fact, it is found in one or both of these cases, that the government is using its border search power to target certain kinds of political speech (as is alleged), then some kind of limitation might be on the horizon. Given the enormous amount of data people now casually travel with in their pockets or briefcases, some limit may well be overdue.
Have you ever “borrowed” access to someone else’s Wi-Fi network? Industry estimates are that up to 32% of people who use computers have tried to get on a wireless network that was not theirs, at one time or another. In and of itself, this is a minor infraction, more a commentary on the general decline of civility and good manners in our society than anything else.
Yet, in the case of a defendant named Richard Stanley, his choice to use someone else’s Wi-Fi without permission has given rise to an interesting series of Fourth Amendment legal issues as his prosecution for possession of child pornography proceeds forward in federal court in Pittsburgh.
As the surveillance technology at the disposal of state and federal law enforcement continues to evolve in both sophistication and availability, inevitably there is going to be friction between the use of this technology and constitutional limitations. This tension is already being played out in trial courts across the country. It is an unfolding story well worth monitoring.
A current example is the on-going prosecution of an alleged bank robber named Christian Paetsch in federal court in Colorado, as related in an article in The New York Times, dated November 20, 2012.
DNA evidence has come a long way since the O.J. Simpson case. It has infiltrated the popular consciousness through television shows like “CSI” and others. The awesome power of this technology to condemn, but also to frequently exonerate, is par for the course now, recognized and accepted by judges, juries and practitioners as a reality of the criminal justice system landscape.
Many states, prudently, have codified their methods for the collection and utilization of such evidence. Maryland is one of them, having enacted the “Maryland DNA Collection Act”, Md. Code Ann., Pub. Safety Section 2-504.
Continue reading “Should the Government be Allowed to Take DNA Samples After an Arrest, but Prior to a Conviction? High Tech Squares Off with the Fourth Amendment as the Supreme Court Grants Certiorari in King v. Maryland”
From a defense viewpoint, one of the highlights of Supreme Court jurisprudence over the last decade or so has been a trio of cases dealing with a defendant’s Sixth Amendment right to confront the witnesses against him (or her).
In the three cases, Crawford v. Washington, Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico, the Court imposed and maintained stringent limits on a prosecutor’s ability to admit forensic-type evidence while circumventing the Sixth Amendment’s Confrontation Clause right to cross-examine. The actual evidence at issue in each of the three cases was different: Crawford (a tape recording), Melendez-Diaz (a state forensic laboratory report) and Bullcoming (a blood alcohol report).
This past month, the United States Court of Appeals for the Second Circuit overturned the convictions of six brokers and traders who were charged and later convicted in an insider trading scheme in which day traders were allowed to eavesdrop on confidential communications via broker “squawk boxes.” A primary basis for the appeal court’s ruling was the failure of federal prosecutors to produce as “Brady” material transcripts of depositions taken by an attorney for the Securities and Exchange Commission in a related matter. * Portions of these withheld transcripts contradicted the testimony of key government witnesses at trial, hence triggering the reversal.