Tag Archives: fourth amendment

Can the “private search” doctrine serve as an exception to the Federal and State of New Jersey constitutional requirement that a warrant issue in advance of a search of a private home? The Supreme Court of New Jersey’s decision in State of New Jersey v. Ricky Wright (May 19, 2015)

The “private search doctrine” is a semi-obscure corner of Fourth Amendment jurisprudence. At its base, the doctrine addresses instances in which a private actor (i.e., not a law enforcement officer) conducts a “search” and discovers some species of contraband or proof of illegal conduct.   That person must then proceed to notify law enforcement and/or present them with the item in question. Law enforcement must then proceed to duplicate the private search without first obtaining a judicial warrant.

Does this happen every day? Probably not. Yet, it does happen enough to be the subject of a recent decision by the Supreme Court of New Jersey, which opinion recounts a diverse line of state and federal authority on this very issue. Continue reading Can the “private search” doctrine serve as an exception to the Federal and State of New Jersey constitutional requirement that a warrant issue in advance of a search of a private home? The Supreme Court of New Jersey’s decision in State of New Jersey v. Ricky Wright (May 19, 2015)

Supreme Court Permits DNA Sampling of Persons Arrested, But Not Yet Convicted, in Maryland v. King

We wrote earlier this year on the Fourth Amendment issue presented in Maryland v. King: whether a Maryland statute that allows the state to obtain DNA samples via “cheek swabs” from arrested individuals, as one step in the state’s routine booking and processing procedure, is an invalid warrantless search.

Continue reading Supreme Court Permits DNA Sampling of Persons Arrested, But Not Yet Convicted, in Maryland v. King

Duane Morris Partner Eric Breslin to Moderate “Brave New World: What the Government’s New War on Computer Crimes Means for Privacy Interests”

Duane Morris partner Eric Breslin will moderate “Brave New World: What the Government’s New War on Computer Crimes Means for Privacy Interests” at the American Bar Association (ABA) Criminal Justice Section’s Fourth Annual Prescription for Criminal Justice Forensics. The panel will occur on Friday, June 7, 2013 from 4 p.m. to 5 p.m.

Click here to read more about the event.

High Tech (or Rather Low Tech) Squares Off with the Fourth Amendment, Round 6: The Supreme Court Delivers a Rap on the Snout to Franky, the Drug Sniffing Dog

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.

Continue reading High Tech (or Rather Low Tech) Squares Off with the Fourth Amendment, Round 6: The Supreme Court Delivers a Rap on the Snout to Franky, the Drug Sniffing Dog

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 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

High Tech Squares Off with the Fourth Amendment, Round 4: Should the Government be Able to Search and Hold Your Laptop at the Border without a Warrant?

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.

High Tech Squares Off with the Fourth Amendment, Round Three: The Pittsburgh “Moocherhunter” Case

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.

Continue reading High Tech Squares Off with the Fourth Amendment, Round Three: The Pittsburgh “Moocherhunter” Case

High Tech Squares Off with the Fourth Amendment, Round Two: The Aurora, Colorado GPS Case

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.

Continue reading High Tech Squares Off with the Fourth Amendment, Round Two: The Aurora, Colorado GPS Case

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

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