Michigan Court of Appeal Issues Strong Decision Restricting Government Drone Use

I learned from Greg McNeal's Twitter thread (and related blog post) of an interesting opinion issued by the Michigan Court of Appeals last week in which the court found that the use of a drone by a township to take aerial photographs of private property violated the property owners' reasonable expectations of privacy.

The case is Long Lake Township v. Maxon. A link to the opinion is here, a link to the dissent is here.

Summary of the Case

The township filed a civil action against the property owners, arguing that their property constituted an "illegal salvage or junk yard" in violation of town ordinances. The township relied on aerial photographs of the property taken in 2010, 2016, 2017, and 2018 that purportedly showed an increase in junk stored on the property. The township had used a drone to take the photos.

The property owners moved to suppress the photos, arguing that they had been obtained through an unlawful search in violation of the Fourth Amendment. In response, the township argued that the drone operator it had hired to take the photos had done so in a manner consistent with FAA regulations--noting that they had maintained a consistent line of site with the drone and that it was lower than 400 feet at all times. (A link to the FAA regulations that the township appears to be referencing is here, an FAA summary of the rules is here).

The court recognized that Michigan has a law that restricts individuals from using drones to capture photos, video, or audio recordings of other people in a manner that would invade others' "reasonable expectation of privacy."

The court first noted that in Kyllo v. United States, the United States Supreme Court had found that the use of a thermal imaging device on a home violated the Fourth Amendment. In Kyllo, the Court concluded:

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant.

The Michigan Court of Appeals took pains to note that Kyllo's holding was not premised on whether the technology used was widely available--noting that other language in Kyllo stated that homeowners should not be "at the mercy of advancing technology" that might be able to see through walls.

The court then considered the cases, California v. Ciraolo (no Fourth Amendment violation where police conducted aerial observation of a defendant's yard from 1,000 feet up) and Florida v. Riley (aerial observation of greenhouse from 400 feet up did not constitute a Fourth Amendment violation). The court emphasized Justice O'Connor's concurrence in Riley, where she recognized that the plurality of the Court relied on FAA regulations governing how high the helicopter could fly, and concluded that compliance with FAA regulations alone does not determine compliance with the Fourth Amendment. Instead she found that "considerable public use of airspace at 400 feet and above" meant that Riley did not have a reasonable expectation that the curtilage of his property was protected from naked-eye aerial observation from 400 feet.

The majority of the Michigan Court of Appeals concluded that the use of the drone by the township was closer to the thermal imaging device used in Kyllo than the aircraft overflights in Ciraolo and Riley. The court noted that FAA regulations were relevant in this case because they demonstrated that drones were "qualitatively different from airplanes and helicopters," as they are smaller, more maneuverable, stealthy, and fly at lower heights. 

The court did not reach the determination of whether a drone overflight was trespassory, finding it unnecessary to do so. Instead, the court found that the determination that the drone use violated reasonable expectations of privacy was enough to establish a Fourth Amendment violation. The court also refused to craft a precise altitude test, instead concluding that "persons have a reasonable expectation of privacy in their property against drone surveillance, and therefore a governmental entity seeking to conduct drone surveillance must obtain a warrant or satisfy a traditional exception to the warrant requirement."

In a dissenting opinion, Judge Hood took issue with the majority's blanket distinguishing of Ciraolo and Riley. Recognizing that drones are smaller, Judge Hood noted there was no evidence that the photos captured were different than those that could be taken from a plane or helicopter at that altitude. Judge Hood further noted that the drone was flying in airspace in which the public could use drones, and emphasized that Kyllo involved technology that was not in general public use--not the case with drones which are generally available for people to use.

Analysis

Years ago, I wrote an article surveying state laws restricting law enforcement drone use. One of my main conclusions was that state-level litigation governing how law enforcement agencies could use drones and the evidence obtained from these drones, was necessary. Absent specifically-drafted legislating that put meaningful restrictions in place, the government would likely engage in broad drone use in light of Ciraolo and Riley. Such broad use could be restricted by laws, or by courts who could craft exceptions to the existing Fourth Amendment case law.

I concluded that leaving it in the hands of courts to carve out restrictions for government drone use (either through passing no laws or passing laws that simply reaffirm Fourth Amendment protections) was not the best approach, and that both privacy advocates and law enforcement advocates should support legislation. Legislation would permit evidence-based restrictions on particular types of drone use and leave law enforcement open to use drones in a manner that balanced potential privacy intrusions with the utility of new technology. These restrictions could be amended as technology develops. Courts, however, would not be in a position issue such carefully crafted restrictions, and would likely be faced with the options of broadly permitting government drone use, or stretching Fourth Amendment case law to craft restrictions that could not be amended or addressed by state legislatures.

This case is an example of the latter outcome. As far as I can tell, Michigan law does not restrict its law enforcement agencies' use of drones. Instead, the most the court cited was a law restricting private drone use--a law couched in broad language based on the Fourth Amendment concept of "reasonable expectations of privacy." As I argue in my article, laws like this provide no guidance for courts beyond what is already set forth in the case law, and are therefore have little to no practical impact. 

In the face of this dearth of meaningful restrictions, the court decided to craft a broad restriction of its own--a prohibition on all warrantless drone surveillance of private property. Law enforcement agencies in Michigan must now obtain a warrant before using a drone in this manner, or use a helicopter for such surveillance. This case is based on the Fourth Amendment, so the state legislature cannot write any laws to restrict the scope of the opinion. The only thing the government can do to try to undo this outcome is to appeal to the state supreme court.

Privacy advocates may cite this case as an example of why laws restricting government drone use are unnecessary. That would be a mistake. The dissenting opinion illustrates how courts could just as easily reach the opposite conclusion and permit government drone use. FAA regulations (which have developed since I wrote my article) now permit fairly flexible drone use--including altitude restrictions of below 400 feet--which may permit much closer imaging of private property. I suspect that other courts in similar situations may rely on Ciraolo and Riley to permit similar drone use.

In civil cases, a strong sign that you've reached a fair settlement is that both sides are unhappy with the outcome. The same is the case with drone restrictions. Privacy advocates would likely take a strong view of Fourth Amendment protections and would consider a legislative restriction approach to be a needless compromise. Law enforcement advocates would not want their ability to use new technology to be curtailed by laws or regulations. But using legislation to curtail specific restrictions on government drone use is the only way to balance the nuances of new technology with the blunt instrument of Fourth Amendment decision-making. Long Lake Township illustrates how failing to take this approach can come down against law enforcement interests, but its dissent should be just as much of a warning to those concerned with law enforcement overreach.

Boating Under the Influence and Probable Cause

Here's some good news out of Iowa: it appears that incidents involving people boating under the influence of alcohol are on the decline. From this KCRG report:

A total of 78 full time Iowa Department of Natural Resources conservation officers cover Iowa's 99 counties. This summer those officers did get the help from 29 seasonal water patrol officers but that still means full timers have multiple counties under their care. And when you consider around 500 boats may be out on a typical holiday weekend just at Coralville Reservoir alone, catching someone boating under the influence can be a challenge.

. . .

"If a state trooper or deputy officer in the cities, they know 'okay they're going across the lines.' There's no lines on the water. There's no evidence left other than the wake," said [Iowa Department of Natural Resources conservation officer, Eric] Wright.

By late July at Coralville Reservoir only three people had been arrested this summer for the crime. If you think that number is low, you're not alone.

"There's been fairly heavy enforcement on Coralville itself and we're starting to see the effects of it."

Data obtained by I9 through an Iowa open records request shows BWI arrests at Coralville have been on the decline since at least 2014 when 33 people were charged. The numbers statewide show a similar story, arrests did spike however in 2015 when 47 people were arrested. Fast forward to July of this present year and that number drops to 29.

The consequences for boating under the influence are similar if you are caught driving a car drunk in Iowa but if you get a BWI there is nothing stopping you from losing your driving privileges out on the road. In fact, when I9 searched the names of people charged over the years with BWI we found several who also had OWIs on their record as well.

The report is a bit confusing -- particularly the second-to-last paragraph. It is unclear whether the 47 people were arrested statewide or in the Coralville reservoir alone (the context suggests that it is in Coralville alone). With that number in the mix, the claim that arrests have been on the decline since 2014 isn't accurate - rather the arrests seem to have been on the decline since 2015 (assuming 2016 had fewer than 47 arrests, but more than 29).

But I did not highlight this story or spend untold numbers of what could have been billable hours writing this post to slog through numbers. Instead, I was intrigued by Officer Wright's discussion of deciding whether to pull over a boat -- noting that unlike officers who decide to pull over a car, there may not be clear cut instances where the car crosses a lane line. While the Fourth Amendment restricts officers from the unreasonable seizure of vehicles, officers are permitted to stop a vehicle if they have reasonable, articulable suspicion that a crime has occurred -- or "probable cause." Most typically, officers can establish probable cause by observing a traffic violation, like failing to signal, crossing a lane line, or speeding. But what about boats?

A potential basis for stopping a boat is analyzed in depth in the Iowa Supreme Court case of State v. Pettijohn. There, the Court held that an officer's stop of a boat was constitutional because the officer reasonably believed that the operator of the boat was violating Iowa Code 462A.12, which prohibits the reckless, negligent, or careless operation of a vessel, water skis, surfboard, or similar device. The basis for the violation? The defendant was driving a boat while a passenger was dangling her feet in the water near the motor, which the officer knew used an unguarded propeller based on his knowledge of the type of boat that he observed. Section 462A.12 likely operates as a catch all, as officers can likely articulate reasons for stopping boats based on numerous circumstances, including boating in darkness without lights (assuming there aren't laws that already specifically address that), or unsafe speed (particularly with other boats present), or both!  See, e.g., Iowa Supreme Court Attorney Disciplinary Board v. Cannon (attorney suspended from practice of law for various prior alcohol/drug related offenses, including a boating while intoxicated offense in which he was stopped for accelerating "rather quickly" in a five mile per hour speed-limit zone at 10:30 p.m.).

Another potential basis for stopping a boat is mentioned, but not analyzed, in State v. Slade, where officers believed that a boat was over capacity, and stopped the boat for that reason. As it turns out, the boat contained 16 people, but only was designed to hold 14 people. Slade is notable because it involves "Party Cove" at the Coralville reservoir. Having grown up close to that location, were I to testify as an expert on the Fourth Amendment as applied to Iowa waters, I would likely conclude that the mere presence of a boat in that section of the reservoir constitutes probable cause to stop a boat on suspicion of boating under the influence. I doubt that the courts would agree with me, but that's just because the judges that make these important decisions haven't spent enough time out on the reservoir on the weekends.

But perhaps things have changed since I left Iowa.  KCRG notes that only three people had been arrested on the reservoir for boating under the influence by late July this year. This does not sound like the booze-soaked body of water of my childhood memories, and if the arrest numbers reflect a general trend towards less drinking and boating, then it's a trend that I welcome.

Fish, the Fourth Amendment, and the Scope of Consent

It's always a pleasant surprise to see legal disputes that involve fish for nonsensical reasons, particularly fish-related disputes that may be heard by the United States Supreme Court. Cases involving salmon are of particular interest (see, e.g. here and here). 

I was therefore thrilled to see this report by James Gill of the New Orleans Advocate on the case of Jacson Moore, who thought he could successfully smuggle marijuana inside of frozen salmon. Moore thought wrong:

Baton Rouge police were staking out the UPS depot in Port Allen in 2012 when they noticed a package from Oakland, California, which is evidently the source of many illegal drug shipments. The package was addressed to Moore, who has a police record that would heighten suspicions that drugs were inside. 

The police department, of course, has sniffer dogs that could have settled the issue, but K-9 was not called in. Neither was a search warrant applied for. The cops just kept tabs.
Moore retrieved the package from his doorstep, re-emerging a little later with a Styrofoam container he put in the trunk of his car. He then drove off on an erratic path that indicated he was “heat checking” — trying to make sure the cops weren't on his tail. But they were, and, after 15 zigzagging minutes, he was pulled over. 

A rule of thumb might be that an offender with contraband in his car is best advised not to consent to a search, but Moore did so after being told that the police who stopped him were investigating an armed robbery. He evidently figured that nobody seeking the fruits of a heist would look twice at a few frozen members of the finny tribe. 

When the cops did, he said the fish were a present from his aunt. Officers cut them open and found the dope. Moore also gave them permission to search his apartment, where they found more cannabis and a gun.

Moore argued that the search was unconstitutional, and while the trial court agreed, its decision was overturned on appeal. The Louisiana Supreme Court declined to hear the case although Justice Crichton and Justice Weimar dissented. Joe Gyan Jr. of The Advocate reports that Moore is now trying to appeal to the United States Supreme Court:

In a legal brief filed at the Supreme Court, Messina claims the officers did not have probable cause to believe contraband was in the car, and he says Moore's consent to search the car was not freely and voluntarily given because officers lied about investigating a robbery. 

Messina acknowledges that officers can use deception during interrogations, but he stresses that such interrogations must be preceded by police informing the suspect of certain constitutional rights, such as the right to remain silent. 

"There is a distinction between misleading a defendant once he has relinquished a Constitutional right versus misleading a defendant in order to cause him to relinquish a Constitutional right," he argues in the Supreme Court documents.

There had better be a bit more to Messina's argument, since police can lie in order to gain consent for searches or entry onto property. No less a Fourth Amendment stickler than Justice Warren held that officers can lie about their identity to gain access to property in order to find evidence of drugs.

This is not to say that officers' ability to deceive is unlimited, nor is it to say that Moore does not have a decent Fourth Amendment argument. Indeed, the officers' lie about what they were searching for (evidence of an armed robbery), and the scope of their ultimate search raises significant constitutional concerns. But this case is not so much one of deceit as it is a test of the scope of consent in the Fourth Amendment context.

Police officers can ask for consent to search a suspect's home, vehicle, or person. If officers obtain consent to conduct a search, incriminating evidence that they discover can be admitted at trial. There are limits to the consent exception to Fourth Amendment protection. For one, the consent must be voluntary. Additionally, officers cannot exceed the scope of the authority they are granted by the subject's consent. As Justice Stevens wrote in Walter v. United States:

When an official search is properly authorized—whether by consent or by the issuance of a valid warrant—the scope of the search is limited by the terms of its authorization. Consent to search a garage would not implicitly authorize a search of an adjoining house; a warrant to search for a stolen refrigerator would not authorize the opening of desk drawers.

Moore consenting to a search of his vehicle puts him in a tough position, as the Court held in Florida v. Jimeno that giving officers consent to search a vehicle permits officers to search containers within the body of the car. A search of the trunk is a bit more complicated, though. From the Jimeno decision:

The facts of this case are therefore different from those in State v. Wells, supra, on which the Supreme Court of Florida relied in affirming the supression order in this case. There the Supreme Court of Florida held that consent to search the trunk of a car did not include authorization to pry open a locked briefcase found inside the trunk. It is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk, but it is otherwise with respect to a closed paper bag.

So under Fourth Amendment law officers can search a closed paper bag in a trunk, but (as the Court noted in some very strong dicta) not a locked briefcase in the trunk. What about the interior of vacuum sealed salmon that are inside a Styrofoam container in the trunk of a car?

The fish in Moore's case are far more analogous to a closed, locked container than a closed paper bag. Officers had to open a Styrofoam container, cut through vacuum sealed wrapping, and open up the fish before they found the drugs. Moore therefore has a strong argument that the officers went beyond the scope permitted by his consent to a search of the vehicle when they searched the fish in the trunk.

Moore's argument is strengthened by the fact that the officers said that they were looking for evidence of an armed robbery when they obtained Moore's consent. In granting the officers consent to search his vehicle for evidence of an armed robbery, Moore likely did not expect that officers would extend their search to the interiors of vacuum sealed fish in the trunk of his car, and has a strong argument that the officers' search went beyond the scope of the consent he granted.

Based on the facts that have been reported, the ideal outcome would be for the United States Supreme Court to grant certiorari and reverse the Louisiana Court of Appeals' decision. Based on the percentage of cases that the Supreme Court agrees to hear, however, I think that such an outcome is unlikely. Accordingly, Moore is most likely out of luck.

As a final note, while this post may be a bit last-minute for law students this semester, this case is a fantastic basis for a criminal procedure exam. Students studying for exams now (and next semester) should take note of this case and the many issues it raises. There may just be a few professors out there who think that this story would make a solid issue-spotter.

No, It is Not Legal to Smoke Marijuana While Walking On the Sidewalk in Downtown Los Angeles

...or in any other California city or town for that matter. On November 8, California passed Proposition 64 (text of the Proposition here, analysis here) which legalized the recreational use of marijuana. The LA Times reports on the passage of Prop 64 here. From the LA Times:

The approval of the ballot measure creates the largest market for marijuana products in the U.S. It comes six years after California voters narrowly rejected a similar measure. Activists said passage would be an important moment in a fight for marijuana legalization across the U.S.

“We are very excited that citizens of California voted to end the failed policy of marijuana prohibition," said Nate Bradley, executive director of the California Cannabis Industry Assn. "Proposition 64 will allow California to take its rightful place as the center of cannabis innovation, research and development.”

Discouraged law enforcement officials said they will closely monitor implementation of the ballot measure.

At this point, it looks like the sites I typically link to for California laws have not yet been updated to reflect Prop 64's passage. I will add links to those sections when they become available. For now, the text of the news laws is available in the text of the proposition itself.

The central statute in Prop 64 is the newly created Health and Safety Code 11362.1 which states:

(a) Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:
 

(1) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of marijuana not in the form of concentrated cannabis;
 

(2) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than eight grams of marijuana in the form of concentrated cannabis, including as contained in marijuana products;
 

(3) Possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants;
 

(4) Smoke or ingest marijuana or marijuana products; and  

(5) Possess, transport, purchase, obtain, use, manufacture, or give away marijuana accessories to persons 21 years of age or older without any compensation whatsoever.
 

(b) Paragraph (5) of subdivision (a) is intended to meet the requirements of subdivision (f) of Section 863 of Title 21 of the United States Code (21 U.S.C. § 863(f)) by authorizing, under state law, any person in compliance with this section to manufacture, possess, or distribute marijuana accessories.

(c) Marijuana and marijuana products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.

What was I thinking with my extremely specific, negatively worded title? True, it has been a little off-putting that in the three days since Prop 64's passage I have:

1. Walked through a cloud of marijuana smoke to get to the front door of my office building in the center of downtown Los Angeles;
2. Walked past a young professional in a suit on the sidewalk in downtown Los Angeles in the early evening who was smoking marijuana while chatting with friends;
3. Had the privilege of being stuck behind a slow person taking up the entire sidewalk (which, in itself, should be a crime) who also happened to be smoking marijuana.

But all of this looks legal right?

Not so fast. Newly created Health and Safety Code section 11362.3 states:

(a) Nothing in Section 11362.1 shall be construed to permit any person to:

(1) Smoke or ingest marijuana or marijuana products in any public place, except in accordance with Section 26200 of the Business and Professions Code.

(2) Smoke marijuana or marijuana products in a location where smoking tobacco is prohibited.

(3) Smoke marijuana or marijuana products within 1,000 feet of a school, day care center, or youth center while children are present at such a school, day care center, or youth center, except in or upon the grounds of a private residence or in accordance with Section 26200 of the Business and Professions Code or Chapter 3.5 of Division 8 of the Business and Professions Code and only if such smoking is not detectable by others on the grounds of such a school, day care center, or youth center while children are present.

(4) Possess an open container or open package of marijuana or marijuana products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

(5) Possess, smoke or ingest marijuana or marijuana products in or upon the grounds of a school, day care center, or youth center while children are present.

(6) Manufacture concentrated cannabis using a volatile solvent, unless done in accordance with a license under Chapter 3.5 of Division 8 or Division 10 of the Business and Professions Code.

(7) Smoke or ingest marijuana or marijuana products while driving, operating a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

(8) Smoke or ingest marijuana or marijuana products while riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation except as permitted on a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation that is operated in accordance with Section 26200 of the Business and Professions Code and while no persons under the age of 21 years are present.

Smoking marijuana is prohibited in any public place, unless the place is a business registered to sell marijuana (a quick summary of the exception in Business and Professions Code section 26200). This means that people walking down the sidewalk in a city or suburb or outside of a home or office building are in a public place and therefore violating Section 11362.3, which is an infraction (under the newly created Health and Safety Code section 11362.4).

Notably, while Section 11361.1 states that permitted marijuana possession or use cannot serve as a basis for search or seizure by law enforcement, Section 11361.3's prohibition on marijuana use in public and possession of open containers of marijuana in vehicles covers most conduct that would have served as the basis for such searches and seizures before Proposition 64's passage. Those who thought that Prop 64 would reduce incidents of search and seizure due to officers' detecting the scent of marijuana were therefore mistaken.

Those considering taking advantage of California's new marijuana laws should consider smoking marijuana as a combination of smoking cigarettes and drinking alcohol. You cannot smoke cigarettes inside of (most) businesses or (in Los Angeles) on restaurant patios -- and you cannot smoke marijuana in these locations either. You cannot drink a beer while walking down a sidewalk -- and you cannot smoke marijuana while walking down the sidewalk either. You cannot drive with an open container of alcohol -- and you cannot drive with an open container of marijuana either.

Would-be marijuana smokers should treat smoking marijuana as subject to the combined restrictions on alcohol and cigarettes, and should therefore avoid smoking in public -- particularly if they are in downtown Los Angeles during the early morning or evening hours when I am most likely to be outside. We'll all be better off that way.

Forget Stop-and-Frisk: The Trump Supreme Court's True Threat to Fourth Amendment Protections

When discussing the Fourth Amendment under Trump's upcoming presidency, commentators tend to remain fixated on Trump's remarks in which he calls for a universal stop-and-frisk program. (See, e.g., coverage here and here). I have already blogged that Trump's apparent proposal for a national stop-and-frisk program would be unconstitutional and it is unclear how Trump would implement such a program. Indeed, to do so would almost certainly require the commandeering of state authorities, which would violate the Tenth Amendment -- which Trump vowed to protect in a statement released earlier today.

If Trump appoints judges who adopt Justice Scalia's approach to the Fourth Amendment, this will likely lead to lower Fourth Amendment protections through limits on the exclusionary rule. The Roberts Court has steadily eroded this rule, which prohibits the introduction of evidence that is discovered as a result of a Fourth Amendment violation. Scalia was a notable opponent of the rule, and commentators noted that his death and eventual replacement could represent a possible turning point for the exclusionary rule.

Indeed, even without Justice Scalia, the Court in Utah v. Strieff held 5-3 that an officer's admittedly wrongful detention of a suspect did not warrant the exclusion of evidence discovered after the officer called in the suspect's name and found that there an outstanding warrant for the suspect. The Court held that the search incident to the arrest on the warrant was far enough attenuated from the initial, wrongful stop that the drugs found on the defendant's person were admissible.

If Trump appoints Justices like Justice Scalia who are hostile to the exclusionary rule, I expect that Strieff's logic will soon be extended to other common law enforcement scenarios. For instance, a Court with Trump appointees would likely uphold as constitutional a search in a case in which an officer stops a suspect in a "high drug area" without any other basis for suspicion, calls in the suspect's identity, finds an outstanding warrant, and discovers drugs during a search incident to arrest on the warrant.

Evidence of flagrant or systemic police misconduct -- which was absent in Strieff -- will also likely be absent from the case described above. Overworked defense attorneys who do not explore an officer's history of searches and seizures combined with carefully crafted police reports will reduce the chances of finding flagrant violations of the Fourth Amendment on a case-by-case basis. And I do not suspect that conducting studies on departments to determine the existence of systemic search-and-seizure misconduct will be high on Trump's list of priorities for the Department of Justice.

Those who are concerned about the future of Fourth Amendment protections should avoid getting too caught up in Trump's stop-and-frisk rhetoric. While Trump's flippant disregard for the Constitution warrants criticism and concern, Trump's Supreme Court is most likely to erode Fourth Amendment protections by following trends established long before Trump's presidency was on anybody's radar.

Trump's Bold Plan for the Fourth Amendment

Politico reports on an exciting development in Donald Trump's policy proposals. When asked how he would address "violence in the black community," Trump was ready with this nuanced discussion of police procedures:

“I would do stop-and-frisk. I think you have to. We did it in New York, it worked incredibly well and you have to be proactive and, you know, you really help people sort of change their mind automatically,” Trump told the questioner. “You understand, you have to have, in my opinion, I see what’s going on here, I see what’s going on in Chicago, I think stop-and-frisk. In New York City it was so incredible, the way it worked. Now, we had a very good mayor, but New York City was incredible, the way that worked, so I think that could be one step you could do.”

The Politico headline says that Trump called for "national stop-and-frisk," so that's what I'll assume he said there.

I'm intrigued to see how Trump will manage to dictate local police policy from the national level, and how Trump will manage to overcome some procedural obstacles presented by a particular arcane 18th century legal doctrine. But if this is the same Trump that is going to "open up" libel laws, I doubt that pesky technicalities like the Constitution will be much of an obstacle.

Also, "you really help people sort of change their mind automatically?" Yeesh.

New Jersey's Distracted Driving Bill and Its Disturbing Implications for Probable Cause

USA Today reports:

A bill under consideration in the state Legislature calls to prohibit "any activity unrelated to the actual operation of a motor vehicle in a manner that interferes with the safe operation of the vehicle on a public road or highway." That means no cup of coffee for those sitting in traffic, no munching on that breakfast burrito, no time to groom. (No, the law does not target coffee verbatim.) 

The bill is meant to target distracted driving, which plays a role in thousands of fatal crashes in the state each year. At least 3,179 fatal crashes were attributed to distracted driving in 2014, according to the state's Division of Highway Traffic Safety website. Distracted driving played a role in nearly 800,000 crashes between 2010 and 2014.

Here is a link to the bill itself. The new section the bill would create reads:

2. (New section) a. An operator of a moving motor vehicle shall not engage in any activity unrelated to the actual operation of a motor vehicle in a manner that interferes with the safe operation of the vehicle on a public road or highway.

b. A person who violates this section shall be fined: 

(1) for a first offense, not less than $200 or more than $400; 

(2) for a second offense, not less than $400 or more than $600; and 

(3) for a third or subsequent offense, not less than $600 or more than $800. 

For a third or subsequent violation, the court, in its discretion, may order the person to forfeit the right to operate a motor vehicle over the highways of this State for a period of 90 days. In addition, a person convicted of a third or subsequent violation shall be assessed three motor vehicle penalty points pursuant to section 1 of P.L.1982, c.43 (C.39:5-30.5). 

A person who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against the person in order to render the person liable to the punishment imposed by this section on a second or subsequent offender, but if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes. 

c. Except as provided in subsection b. of this section, no motor vehicle penalty points or automobile insurance eligibility points pursuant to section 26 of P.L.1990, c.8 (C.17:33B-14) shall be assessed for this offense. 

d. A law enforcement officer who issues a summons for a violation of this section shall record on the summons the specific nature of any distracted driving behavior observed.

3. This act shall take effect on the first day of the third month after enactment.

The bill's broad language of "activity unrelated to the actual operation of a motor vehicle in a manner that interferes with the safe operation of the vehicle" would likely give probable cause to any vehicle stop in which an officer sees a driver doing anything other than driving the vehicle. Eating a snack, drinking anything, engaging in animated conversation with a passenger -- all could plausibly fall under this law's broad language.

Admittedly, I suspect that many, if not most, stopped under this law will be warned rather than ticketed. But the broad language of this law would allow officers to justify traffic stops in just about any situation where they see the driver engaging in any non-driving behavior. This grant of substantial discretion may exacerbate racial disparities in traffic stops and could contribute to a disproportionate prosecution of racial minorities for crimes discovered following the stop, such as driving under the influence of alcohol or drugs.

I suspect that the "unfettered police discretion" concern will not garner many votes in opposition to this bill. But perhaps this argument, combined with the votes of those who want to drink coffee and drive, will prove to be enough to defeat this broad piece of legislation.

Fred Flintstone, World Records, and Rules With Shifting References

While the rest of the country was watching the Democratic National Convention yesterday, my attention was drawn to a far more dramatic series of events: an ongoing set of videos in which contenders attempt to seize the world record for the fastest drawing of Fred Flintstone.

This article at Cartoon Brew set this whole thing off. The article featured this video by Myron Smith in which he claimed to hold the world record for the fastest drawing of Fred Flintstone:



This prompted an enthusiastic response from Lev Cantoral, a former classmate and mock trial teammate of mine, who claimed to beat Smith's record in nearly half the time:



Which, in turn, prompted this awful response from Wyatt Duncan:



And this cynical, yet hopeful, response from Nick Maida:



Frankly, I don't know why anybody was watching the Democratic National Convention while this was happening. For my German-speaking readers, I think that part of this saga is covered here as well.

But this is a law blog, or at least, that's what I keep telling people, so what does this have to do with laws -- or rules of any kind? In this post, I will explore an initial question people may have: are these videos and purported records "official" in any way? Next, I will explore how these videos and the shifting quality of the drawings in them illustrate a criticism of viewing laws or constitutions as living documents with flexible frames of reference.

Video and the Future of Excessive Force Law

I just learned about the shooting and death of Philando Castile by police officers during a traffic stop in Falcon Heights, Minnesota. Buzzfeed, the Los Angeles Times, and CBS Minnesota currently have reports on the shooting, although I expect more outlets will report on this soon. From Buzzfeed:

A Facebook Live video posted Wednesday night appeared to show the aftermath of a black man’s fatal shooting by police officers in Falcon Heights, Minnesota. 

Saint Anthony police confirmed the man died but did not release his name. Multiple local news outlets identified him as 32-year-old Philando Castile.

Police said Wednesday that the shooting took place after a traffic stop about 9 p.m. local time. A gun was recovered from the scene. 

Saint Anthony Sgt. John Magsen said he was aware of the Facebook video, but couldn’t confirm that it was of the incident. The video was temporarily removed, but reappeared on the page later with a graphic warning. 

. . .

The video was posted by Lavish Reynolds, who said she was the man’s girlfriend and streamed the graphic encounter from the seat of a car. The man is seen sitting in the other seat, his white shirt soaked in blood.

The link in the text quoted above leads to Reynolds' Facebook account. Currently, the video is the top post at the account, and those who wish to view it are warned that it is indeed graphic.

The Castile shooting follows on the heels of the widely publicized shooting of Alton Sterling, which occurred early on Tuesday in Baton Rouge, Louisiana. Reports on the Sterling shooting can be found here and here. As the Washington Post reports, the Sterling shooting lead to "outrage" and protests, the force of which were bolstered by a trend of widely-publicized instances of lethal force:

Police departments nationwide have grappled with how to quell public distrust after police shootings. Protests have erupted in dozens of major U.S. cities —from Cleveland to Minneapolis to New York — in response to police shootings during the past two years. In both Ferguson, Mo., and Baltimore, demonstrations gave way to nights of rioting and violence as frustrated community members demanded answers following the deaths of Michael Brown in Ferguson, and Freddie Gray, who died in police custody in Baltimore.

Both the Castile and Sterling incidents involved graphic video of the shootings. As smartphones continue to proliferate, it is far easier for witnesses or parties to obtain footage of instances in which law enforcement officers allegedly exercise excessive force. In both the Castile and Sterling incidents, videos of the incidents (or their aftermath) quickly spread across the internet, prompting strong reactions and criticism of the police officers' conduct.

Cases like this lead me to wonder whether the spread of easily-accessible video technology will lead to changes in excessive force law, particularly in cases involving lethal force. The Castile case in particular reminded me of an excessive force (42 U.S.C. §1983) lawsuit in Gonzalez v. City of Anaheim, (which I learned about through Shaun Martin's excellent California Appellate Report) back in 2013. Gonzalez consists of two opinions: a 2013 opinion by a three-judge panel, and a 2014 opinion in which an en banc Ninth Circuit reversed the 2013 decision. In Gonzalez, officers stopped Gonzalez's vehicle after observing Gonzalez make an illegal left turn and weave within his lane, and after noting that, after running the vehicle's plate, that "the van had been involved in a prior narcotics stop." The 2014 decision describes what ensued:

The officers exited their vehicle and approached the minivan from both sides. Ellis approached from the driver's side, and Wyatt approached from the passenger side. Wyatt drew his gun. Wyatt thought he saw Gonzalez reach for something between the driver and passenger seats and warned Gonzalez that if he reached down again, Wyatt would shoot. Gonzalez at that point complied and held his fists in his lap. 

The officers told Gonzalez to turn off the vehicle and open his hands, which he held clenched. Ellis tried to open the driver's side door, but it was locked. The officers reached through the minivan's open windows and opened the driver and passenger side doors. Ellis saw Gonzalez pull his hand out of a bag located between the two front seats. Ellis observed a plastic bag in Gonzalez's right fist. Ellis told Gonzalezto turn off the vehicle and give him his hands. Gonzalez did not respond to that command. 

Wyatt reached into the car, struck Gonzalez's elbow three times with a flashlight, and told Gonzalez to open his hand. Gonzalez then raised his hand up to his mouth, as if to swallow what he was holding. Ellis grabbed Gonzalez. Wyatt testified that he thought Ellis was trying to apply a carotid restraint, but Ellis testified that he was only trying to gain control of Gonzalez's hands. Wyatt also observed that Gonzalez had a clenched fist and was reaching downward with his left hand. Wyatt called for assistance on his police radio. Wyatt went around to the driver's side to try to help Ellis restrain Gonzalez, but was not able to do so. 

Wyatt went back to the passenger side, entered the minivan, and began punching Gonzalez in the head. Ellis observed Gonzalez reaching for the minivan's gear shift with his right hand. Ellis thought Gonzalez was attempting to shift the car into drive so Ellis used his flashlight to hit Gonzalez on the back of the head to try to stop him. 

Despite the officers' efforts, Gonzalez managed to shift the minivan into drive, and the minivan began moving. Ellis withdrew from the vehicle as it began moving and struck Gonzalez in the head as he did so. The front passenger door closed behind Wyatt, who remained in the vehicle. 

Ellis stated that Gonzalez "stomp[ed]" on the accelerator. Wyatt said that Gonzalez"floored the accelerator" and that the vehicle "violently accelerated."
Wyatt yelled at Gonzalez to stop the car, but he kept going. Gonzalez swatted Wyatt's hand away as he tried to turn off the ignition or shift the transmission to neutral or park. Unable to stop or gain control of the car, Wyatt drew his weapon and shot Gonzalez in the head, killing him. He shot from a distance of less than six inches. The minivan hit a parked car and came to a stop. 

Wyatt testified that he fired the shot less than ten seconds after the car started moving, and it could have been less than five seconds. He estimated that the car moved approximately 50 feet in that time and was going 50 miles per hour at the time of the shot.

The initial majority determined that the Plaintiff's excessive force lawsuit was barred by qualified immunity, noting that "when Gonzalez tried to shift the van into drive with an officer in the vehicle, the situation became substantially more dangerous, and the officers' justification for force increased commensurately." Judge Clifton dissented, however:

"Deadly force cases pose a particularly difficult problem," we have observed, "because the officer defendant is often the only surviving eyewitness." Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994). This is one of those cases. Rafael Gonzalez is dead and cannot speak for himself.

Judge Clifton also noted that there were inconsistencies in the officers' testimony and ultimately wrote the en banc decision reversing the 2013 opinion, reiterating the importance of consistent officer testimony:

Because Gonzalez is dead, the police officers are the only witnesses able to testify as to the events that led to Gonzalez's death. In such a circumstance, we must carefully examine the evidence in the record to determine whether the officers' testimony is internally consistent and consistent with other known facts. After conducting such a review, we conclude that a significant inconsistency in the officers' testimony was sufficient to present a genuine dispute of material fact. Based on the current record, summary judgment on the plaintiffs' claim for deadly excessive force was inappropriate. We reverse and remand that claim for further proceedings.

Of particular note was the testimony regarding the distance the vehicle traveled and its speed:

As described above, Ellis testified that Gonzalez "stomp[ed]" on the accelerator, and Wyatt said that Gonzalez "floored" it. Wyatt specifically testified that the minivan "violently accelerated." But that is not entirely consistent with Wyatt's other testimony. His story was that the minivan moved 50 feet in five to ten seconds but was going 50 miles per hour when he shot. 

That combination of facts appears to be physically impossible. There are three pieces to this puzzle: the speed of the minivan at the time of the shot, the distance it traveled, and the time that elapsed. These pieces don't fit together. As plaintiffs argued to the district court, a vehicle that traveled 50 feet in ten seconds would have an average speed of only 3.4 miles per hour. If the time period is cut to five seconds, the average speed increases only to 6.8 miles per hour. Even accepting that the minivan would be gaining speed while accelerating, an average speed of 3 to 7 miles per hour appears inconsistent with Wyatt's testimony as to the speed of the vehicle and with the testimony of both Wyatt and Ellis that Gonzalez floored or stomped down on the gas.

In Gonzalez, the officers' testimony proved mathematically inconsistent, which substantially contributed to the reversal of the earlier decision. This inconsistency presented at least enough of a factual dispute to defeat the defendants' motion for summary judgment.

But how often will there be testimony in a lethal force case in which officers' statements paint a mathematically impossible portrait of the facts? I suspect that similar contradictions are absent from the testimony most cases involving lethal force as the Plaintiffs are unable to contradict the officers' statements.

Video, however, may change things. Admittedly, the Castile and Sterling cases are not perfect examples, as both cases involved separate witnesses who were shooting the videos. Had the witnesses not taken the videos, they still would be available to testify. But the videos and their wide publicity confirms the existence of these witnesses and moves them into the spotlight as public figures who now would almost certainly testify in depositions or any ensuing excessive force trial. And even in the absence of third party witnesses, the Plaintiff in a deadly force case may still take a video prior to his or her death, and video of the incident may be captured on officers' body cameras.

In addition to raising public awareness of excessive force incidents, video footage may lead to a change in the law of excessive force (or at least the practice of excessive force law). Video evidence may give judges pause before determining that there is no dispute of material facts. Indeed, video footage may prevent a case from ever reaching a summary judgment stage, as it may lead defendants to believe that a summary judgment motion may be futile.

It is too early to determine what the outcome would be any any criminal or civil cases that may arise from the Castile or Sterling incidents. But cases like these demonstrate that the future of excessive force litigation is likely to change as videos of alleged instances of excessive force become more common.

In Washington, Your Trash is Private, But Not Your Abandoned DNA

So reports the Seattle Times:

Seattle’s ordinance allowing garbage collectors to look through people’s trash — to make sure food scraps aren’t going into the garbage — was declared “unconstitutional and void” Wednesday afternoon by King County Superior Court Judge Beth Andrus.

The Court's order is here.  The Court held that looking through people's garbage was an unconstitutional search in violation of resident's reasonable expectation of privacy.

"But wait!" one may say, "What about California v. Greenwood, in which the United States Supreme Court held that there was no Fourth Amendment violation when officers searched the trash bags a suspect left to be picked up on the curb in front of his house?"

To answer the inquisitive Fourth Amendment enthusiast: Washington law governing searches and seizures provides a heightened level of protection. Here is the relevant language from the Court's order:

The Washington Supreme Court diverged from California v. Greenwood when analyzing the issue under Art. I, §7. In State v. Boland, 115 Wash.2d 571, 800, 800 P.2d 1112 (1990), the Supreme Court held that under our state constitution, a defendant's private affairs were unreasonably intruded on by law enforcement officers when they removed garbage from his trash can and transported it to a police station to be searched by state and federal narcotics agents. The Supreme Court held that any resident who places garbage in a can and puts it on the curb for collection reasonably believes the garbage will not be subjected to a warrantless governmental search. 115 Wash.2d at 578. "While a person must reasonably expect a licensed trash collector will remove the contents of his trash can, this expectation does not also infer an expectation of governmental intrusion." Id. at 581. In other words, we expect the collector to pick up our garbage and remove it for proper disposal; we do not expect that the government will search the contents of our garbage bags to identify evidence of wrong-doing.

On the one hand, the court's reliance on Washington's unique constitutional privacy protections and case law limits the scope of this ruling.  But on the other hand, this ruling highlights how state constitutions may provide more protection than the federal constitution.

The logic behind Washington's protection of privacy in trash has its limits. Elizabeth Joh noted the potential for the court's order to effect the law governing expectations of privacy in abandoned DNA (which is what interested me in this case in the first place). After some digging, however, I found that defendants would be hard pressed to extend State v. Boland or the logic of this more recent trash ordinance injunction case to the government's collection and testing of abandoned DNA.

In State v. Athan, the Washington Supreme Court found no violation of Article I, section 7 of the Washington State Constitution when the police employed a creative scheme to obtain a suspect's DNA:

The detectives invented a ruse to obtain Athan's DNA without making Athan aware they had resumed investigating Sumstad's murder. Posing as a fictitious law firm, the detectives sent Athan a letter inviting him to join a fictitious class action lawsuit concerning parking tickets. The letterhead contained the names of the "attorneys," all of whom were employed by the SPD. Believing the ruse to be true, Athan signed, dated, and returned the enclosed class action authorization form and attached a hand-written note stating, "if I am billed for any of your services disregard my signature and my participation completely." Ex. 53.

 ¶ 6 Athan's reply was received by Detective Diaz, one of the "attorneys" listed on the letterhead. Without opening it, Diaz gave the letter to another detective who forwarded it to the crime lab. A lab technician opened the letter, removed and photographed the contents, cut off part of the envelope flap, and obtained a DNA profile from saliva located on the flap. The DNA profile from the envelope matched the DNA profile from the semen found on Sumstad's body. Based primarily on the results of the DNA testing, the prosecuting attorney filed an information and probable cause statement to secure an arrest warrant for Athan.

This, the Washington Supreme Court held, did not violate Washington's constitutional equivalent of the Fourth Amendment.  Here is the relevant analysis:

We find there is no inherent privacy interest in saliva. Certainly the nonconsensual collection of blood or urine samples in some circumstances, such as under the facts of Robinson, invokes privacy concerns; however, obtaining the saliva sample in this case did not involve an invasive or involuntary procedure. The relevant question in this case is whether, when a person licks an envelope and places it in the mail, that person retains any privacy interest in his saliva at all. Unlike a nonconsensual sampling situation, there was no force involved in obtaining Athan's saliva sample here. The facts of this situation are analogous to a person spitting on the sidewalk or leaving a cigarette butt in an ashtray. We hold under these circumstances, any privacy interest is lost. The envelope, and any saliva contained on it, becomes the property of the recipient.

The Court goes on to consider and dismiss concerns that DNA may reveal a great deal of information about a suspect, noting that in this case, the testing done on the DNA was restricted to the defendant's identity.

Under Article I, Section 7 of the Washington State Constitution, you can reasonably expect that the government will not search through trash that is placed on the curb for collection. It is not reasonable, however, to expect that the government will not test the DNA in your saliva on an envelope you mail to what you think is a law firm. While states may protect rights beyond protections found in the United States Constitution, Washington teaches us that these extended protections may end up being quite limited in scope.

Aerial Surveillance, Intrusiveness, and the Fourth Amendment

Eugene Volokh has this post at the Volokh Conspiracy highlighting the recent case of State v. Davis in the New Mexico Supreme Court. In that case, police officers observed property by flying over it at a height of fifty feet in a helicopter. The Court held that the intrusiveness of this surveillance, which apparently included broken beams and solar panels, rendered the flyover a Fourth Amendment search.

The Court also criticized the New Mexico Court of Appeals ruling on the case, which noted that intrusiveness should not be the metric for determining whether a search has occurred because officers may use drones to conduct equally low flyovers without the noise, dust, and damage of a helicopter flyover. The New Mexico Supreme Court pointed out that the Court of Appeals' discussion was unnecessary speculation.

This approach is consistent with the United States Supreme Court's approach in United States v. Jones, in which the majority held that officers had conducted a Fourth Amendment search when they attached a GPS device to a car and tracked it for a prolonged period of time. Rather than hold that the prolonged gathering of information rose to the level of a search, the majority concluded that the act of attaching the GPS device was a physical trespass and therefore violated the Fourth Amendment.

While the Davis court only makes a passing reference to Jones, the Court is correct to conclude its analysis with its discussion of intrusion, as such an intrusion is sufficient to establish a Fourth Amendment violation. Going beyond the intrusiveness discussion is therefore unnecessary to resolve the question presented.

But one day, the question will be presented as to whether a low-flying police drone constitutes a Fourth Amendment search. When that question arises, the drones involved likely will not kick up the dust, incite the panic, or cause the damage that is the central focus of the Davis Court's decision. When that day comes, courts may find themselves constrained by the precedents cited in Davis which uphold the constitutionality of aerial observations. This will be especially true if state and federal laws are drafted in a manner that gives ordinary drone users a wide range of freedom in flying their drones, as common drone use will form the foundation of people's reasonable expectations of privacy.

Courts can be rescued from these difficult decisions, however, if states draft rules regulating the use of evidence obtained by police drones. State legislation can be drafted in a manner that balances law enforcement interests with privacy interests -- and this balance can be reached through debate and public input, rather than through speculation and generalizations that may arise from a single case before a deliberating court.

For those readers interested in hearing more on what I have to say on state drone laws, check out my article on the subject which was just published by the Harvard Journal on Legislation. You can find that updated version on SSRN as well.

California Governor Vetoes Drone Trespass Bill

So reports the LA Times:

Gov. Jerry Brown on Wednesday vetoed legislation to restrict the use of drones over private property.

The legislation would have made flying a drone lower than 350 feet above private property without consent a trespass violation.

"Drone technology certainly raises novel issues that merit careful examination," Brown wrote in his veto message. "This bill, however, while well-intentioned, could expose the occasional hobbyist and the FAA-approved commercial user alike to burdensome litigation and new causes of action.

Additional reporting on the bill (SB 142) and the veto is available here, here, and here.

The California bill was proposed in light of privacy concerns raised by low-flying drones. Supporters argue that drones may be equipped with cameras and by flying low over private property, they may capture invasive images or video of people on that property. Opponents of the bill note that the bill is difficult to enforce and may curtail people's freedom to operate drone technology.

A notable impact of this bill's veto is that law enforcement agencies will not be curtailed in their use of drones. As I blogged previously, Governor Brown vetoed a bill that would have required warrants for law enforcement drone use back in 2014. In vetoing that bill, Governor Brown noted that the bill's protections went beyond Fourth Amendment restrictions on government searches and surveillance -- a justification that does not really mean much, since if the bill had not gone beyond Fourth Amendment protections, the bill would not have added anything to the legal landscape of government drone use.

The most recent drone trespass bill would have effectively limited government drone use had it been passed. Under United States v. Jones, the government carries out a Fourth Amendment search when it trespasses on somebody's property. Had SB 142 passed, it would have been trespass for drones to fly less than 350 feet above private property without the consent of the property owner. Law enforcement agencies would therefore be restricted from flying drones in such a manner, because the resulting trespass would constitute a Fourth Amendment search. Gregory McNeal advocates a similar approach for restricting law enforcement drone use in this paper.

Governor Brown's veto message noted his wish to avoid unnecessary causes of action against hobbyists. While the focus of much of the debate over this bill has been on private actors, it is worth noting that a significant restriction on government drone use has just been vetoed as well.

UPDATE: 9/11/2015: Title of post edited to correct misspelling.

Varriale v. State: DNA Submitted Without Express Limitation on Consent Can be Used to Investigate Other Crimes

So holds Maryland's Court of Appeals (the state's court of last resort), in Varriale v. State. The opinion can be found here. Here is the abstract of the case provided by the Court:

The use of a buccal swab inside a person’s cheek to obtain DNA samples for testing is a search. Generally, a DNA sample may be obtained from an individual for testing by consent, pursuant to a warrant, or other court order. If a person’s DNA profile created from a DNA sample is in the lawful possession of the police for examination by consent and does not exceed the scope of the consent given to conduct the search, there is no Fourth Amendment violation. Moreover, the subsequent examination and use of the DNA in an unrelated investigation is not a search. Here, the defendant did not expressly limit the testing and/or use of his DNA. Any legitimate expectation of privacy that Varriale had in the identifying information contained in his DNA obtained from his cheek cells and penile area evaporated when his DNA was lawfully seized; it did not reappear when law enforcement officers compared his DNA sample to other samples and obtained a match.

Spencer Hsu at the Washington Post covers the case here. Additional coverage from the Baltimore Sun is available here.

To summarize the facts of the case: officers investigating a reported rape learned that George Varriale had been located near the scene of the crime. They asked for his consent to collect DNA evidence from his person, and Varriale agreed. While Varriale's DNA did not implicate him in the rape, his DNA ended up matching a sample collected in 2008 in a burglary. Varriale was charged with the 2008 burglary and after his motion to suppress the DNA evidence was denied, he entered a conditional guilty plea which preserved his rights to appeal.

Varriale is one of several recent cases that illustrate how evolving technologies can strain the acceptability of long-established concepts in Fourth Amendment law. An example of an earlier one of these cases is the 2014 U.S. Supreme Court case, Riley v. California, which involved officers searching the cell phone of an arrestee. Under the long-established concept of searches incident to arrest, officers are permitted to search the person, and immediate surroundings of an arrestee, including containers within that area. In Riley, however, the Court held that this doctrine does not extend to the contents of a cell phone. Noting the wealth of information cell phones contain, the Court held that the search incident to arrest doctrine did not justify the search.

In Varriale, the concept being tested is consent. Well-established Fourth Amendment doctrine states that police officers may search somebody's person, vehicle, or house as long as the person voluntarily consents to the search. Officers are not required to inform the person that he or she has the right to refuse consent. Officers' searches, however, are limited based on the scope of the person's consent. For example, if a suspect consents to a search of her car, that does not mean that officers may search her house -- they would be required to ask that suspect's consent to extend the scope of the search to her house.

Varriale illustrates a broad approach to consent in the DNA context. Mr. Varriale signed a written consent form for the collection of DNA evidence which included the following clause:

I realize that if I do consent to a body search, that any evidence found to be involved in this investigation, being conducted by the Anne Arundel County Police Department can be used in any future criminal prosecution.

Varriale argued that the phrase "any evidence found to be involved in this investigation" limited the scope of the permissible search to the investigation into the suspected rape. The prosecution argued that the phrase "can be used in any future criminal prosecution" indicated that the officers' use of the DNA was not limited to the rape investigation.

The Court held that Varriale's consent to the search was enough to remove any reasonable expectation that officers would not use the DNA to investigate additional crimes. Rather than focusing on the language of the consent form, the Court centered its reasoning around the nature of DNA, and that DNA, like fingerprints, retains the same identifying information over time. The Court held that it was reasonable to expect that officers would retain the DNA sample for future use in investigating other cases, and noted that the defendant did not expressly limit the scope of his consent to the present case. Accordingly, Varriale did not have a reasonable expectation that officers would not use his DNA sample to investigate other crimes.

Officers are not required to tell suspects that they have the right to refuse consent. And Varriale establishes that officers are not required to describe the potential scope of the investigation that may be done into evidence submitted with consent. Instead, it is reasonable for suspects to expect that their DNA may be used for identification purposes in other cases since DNA information provides identification information that remains consistently accurate over time.

Does this broad approach to consent go too far? Suspects who are asked to submit samples of their DNA may be focused on the case at hand, especially if the suspects know that the case involves a crime like rape in which DNA will likely be crucial evidence. These suspects might not realize that state governments and investigating agencies retain DNA databases like fingerprint databases, and therefore may not realize that their consent may implicate them in other matters. Without a statement that the DNA evidence may be retained and used in other cases, suspects may expect that their DNA will be used only in the present investigation.

And while DNA may be analogized to fingerprints, DNA contains more information than fingerprints provide. For example, somebody's DNA may be a close, but not exact, match to another sample. Such a close match might indicate that the person whose DNA was collected is related to the person who provided the other sample. These so-called "familial" matches may be used to investigate crimes as well. For instance, had Varriale's DNA been a close match to a sample in the database, officers may have inquired as to whether Varriale had any close family members and investigated their potential involvement in the 2008 burglary. The wide scope of possible uses for DNA samples requires courts to stretch the assumption that those consenting to the collection of their DNA are truly aware of what their consent entails.

As DNA continues to become a more commonly-used tool to investigate crimes, I would not be surprised to see more cases like Varriale make their way through the courts. It will be interesting to see how other courts address the doctrine of consent in DNA cases, And if courts end up reaching different conclusions, I would not be surprised to see the Supreme Court ultimately take up this issue.

Labeling a Container as "Not Weed" is Unlikely to Eliminate Suspicion

So learned a Nebraska man who was pulled over when officers suspected he was driving under the influence. The Lincoln Journal Star initially reported the story:

A 21-year-old Lincoln man was arrested on suspicion of driving under the influence of alcohol and cited for possession of less than an ounce of marijuana after deputies found a 16-ounce container labeled "Not Weed" under the front passenger's seat.

The New York Daily News reports on the story as well, and includes a quote from Lancaster County Sheriff Terry Wagner regarding the label on the container:

“We call that a clue,” Wagner said.

Indeed, if suspects want to avoid arousing suspicion, labeling their possessions as the opposite of what police officers may be looking for may not be the best approach.

If you want to see a picture of the suspicious container, the Daily Mail has that covered here.

Perhaps if the label were typed rather than handwritten, the driver may have had a better chance of dispelling the officer's suspicion.

(H/T: Lowering the Bar)

Police Radars and the Fourth Amendment

Brad Heath at USA Today has this story discussing law enforcement use of radar devices that can determine whether people are present within a house. Heath notes that this technology was mentioned in the recent Tenth Circuit case, United States v. Denson.

From Heath's article:

At least 50 U.S. law enforcement agencies have secretly equipped their officers with radar devices that allow them to effectively peer through the walls of houses to see whether anyone is inside, a practice raising new concerns about the extent of government surveillance. 

. . .

The radars work like finely tuned motion detectors, using radio waves to zero in on movements as slight as human breathing from a distance of more than 50 feet. They can detect whether anyone is inside of a house, where they are and whether they are moving.

In Denson, the Tenth Circuit held that officers' entry and search of a home was constitutional. In that case, officers used a radar device to determine whether anybody was present inside the home. The court declined to rule on the constitutionality of this device, but noted that significant Fourth Amendment problems would have arisen if the evidence the radar device revealed had been crucial to the government's case. From the opinion:

Separately and as we alluded to earlier, the government brought with it a Doppler radar device capable of detecting from outside the home the presence of “human breathing and movement within.” All this packed into a hand-held unit “about 10 inches by 4 inches wide, 10 inches long.” The government admits that it used the radar before entering — and that the device registered someone’s presence inside. It’s obvious to us and everyone else in this case that the government’s warrantless use of such a powerful tool to search inside homes poses grave Fourth Amendment questions. New technologies bring with them not only new opportunities for law enforcement to catch criminals but also new risks for abuse and new ways to invade constitutional rights. See, e.g., Kyllo v. United States, 533 U.S. 27, 33-35 (2001) (holding that using warrantless thermal imaging to show activity inside a home violated the Fourth Amendment). Unlawful searches can give rise not only to civil claims but may require the suppression of evidence in criminal proceedings. We have little doubt that the radar device deployed here will soon generate many questions for this court and others along both of these axes. At the same time, in a criminal proceeding like ours the government is free to rely on facts gleaned independently from any Fourth Amendment violation. See Murray v. United States, 487 U.S. 533, 537 (1988). And in our case Mr. Denson acknowledges that all of the facts we’ve outlined above were discovered independently of the potentially problematic radar search — a fact that requires us to defer those questions to another day.

Under Kyllo v. United States, law enforcement officers undertake a Fourth Amendment search when they use "a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion" and this search is "presumptively unreasonable without a warrant."

Kyllo may no longer be good law with regard to infrared scanners because this technology is becoming increasingly popular and therefore more likely to be "in general public use." FLIR, the company that manufactured the camera at issue in Kyllo, is now marketing an infrared camera that people can attach to their iPhones.

But even if infrared cameras are so popular that their use is no longer considered a Fourth Amendment search, police radars may fall under Kyllo's prohibition. Radars used to detect human movement or breathing are most likely not in general public use. So even if Kyllo is no longer good law with regard to the infrared technology it discussed, its rule may live on to apply to new forms of technology. Police radars may end up being one such form of technology.

Fourth Amendment Standing and Familial DNA Searches

DNA technology that identifies people based on their genetic profiles is an effective tool for solving crime. DNA can exonerate those who are thought to be guilty and can identify people responsible for crimes when other means of investigation have failed. The United States Department of Justice states that DNA is a "powerful criminal justice tool."

While DNA technology is effective, courts and commentators have noted that the technology raises privacy concerns. In the recent case of People v. Buza, the California Court of Appeal held that a California law mandating the collection of felony arrestees' DNA violated the California Constitution. And commentators' critiques of DNA technology make frequent appearances in law journals (see here, here, and here for some examples of arguments about DNA technology's potential to invade privacy).

One aspect of DNA technology that concerns courts and commentators is "familial searching" of DNA samples. Through familial searching investigators may take one sample of DNA and compare its genetic markers to other samples they have on file in criminal cases. DNA profiles that are extremely similar to unknown DNA samples may indicate a familial relationship, and may prompt investigators to focus on the family members of a person whose DNA sample they have already collected.

For example: investigators may collect a DNA from one person - "Defendant" - as part of an arrest procedure or through an agreement with that person. Defendant's DNA may be extremely similar, but not identical, to a sample of DNA collected from the scene of an unrelated crime. This may mean that Defendant is related in some way to the unknown person who committed that crime - "Suspect" - and investigators may turn to Defendant's family members to determine whether one of them is the Suspect in the outstanding crime. 

For those seeking further clarification, the first several paragraphs of this note by Amanda Pattock provides an engaging anecdote of how familial DNA searches may identify criminals.

In this post, I discuss whether people identified through familial DNA searches have grounds to challenge the DNA search under the Fourth Amendment. I argue that these people do not have a viable Fourth Amendment argument because they lack standing to challenge the search. While recent cases like Riley v. California and United States v. Jones suggest that government investigations obtain large amounts of information about a single person may constitute Fourth Amendment searches, the standing barrier is a significant, independent obstacle to Fourth Amendment claims.

Iowa Department of Public Safety Releases Report on Drones

Iowa's Department of Public Safety recently released a report on drones. The full text of the report is available here. A bill passed back in May called for this report, which would survey whether Iowa's laws should be modified to account for drones and to develop guidelines for drone use.

I think that the report's position on private drone use is sensible. The report notes that drone safety regulations are covered by Federal Aviation Administration (FAA) regulations. The report continues, pointing out that existing laws against trespass and invasion of privacy can restrict invasive drone use by private parties. The report also notes that it may be best to restrict drones "as regulation is needed rather than in a preemptive matter." This sort of approach will help drone technology develop without complicated or repetitive laws that may hinder the free use of drone technology.

I do think that the report misstates Iowa's legislative restrictions on government drone use. Iowa's law governing drones is a bit strange, since it is a mix of restriction and deregulation of government drone use. Section 321.492B of the Iowa Code prohibits the government from using drones in "traffic enforcement" situations. As I have previously argued, it is unclear how far this prohibition extends. While officers may not use drones to spot traffic violations, are they prohibited from using drones to document the scene of a traffic collision or hit and run after the collision has taken place?

In non-traffic enforcement situations, agencies can use evidence obtained through drones whenever an exception to the Fourth Amendment search warrant requirement exists. As I have pointed out several times on this blog, this sort of exception essentially permits law enforcement agencies to use drones without any meaningful restrictions, since drones can still be used to observe people's public movements and the exterior of their homes.

The report, however, claims that this law "contemplates that a search warrant must be obtained, or that evidence that the government has gathered with an unmanned aircraft would be suppressed." While Iowa's law calls for a warrant when the government uses drones, the exception to the warrant requirement is so broad that the warrant requirement does not meaningfully restrict government drone use.

The report is worth reading in full, and its discussion of FAA regulations and state trespassing and privacy laws will likely apply to other states that are contemplating drone regulation.

Heien v. North Carolina: Implications for California Law

On December 15, the United States Supreme Court released its opinion in Heien v. North Carolina. The Court held that a police officer's reasonable mistake of law did not render a traffic stop unconstitutional under the Fourth Amendment. The Fourth Amendment permits traffic stops based on a reasonable suspicion that the law has been violated, and as long as the police officer's mistake of law is reasonable, the stop is not rendered unconstitutional. Analysis of the opinion can be found here and here.

Here is the crux of the majority opinion:

Reasonable suspicion arises from the combination of an officer's understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.

. . .

Heien also contends that the reasons the Fourth Amendment allows some errors of fact do not extend to errors of law. Officers in the field must make factual assessments on the fly, Heien notes, and so deserve a margin of error. In Heien's view, no such margin is appropriate for questions of law: The statute here either requires one working brake light or two, and the answer does not turn on anything "an officer might suddenly confront in the field." Brief for Petitioner 21. But Heien's point does not consider the reality that an officer may "suddenly confront" a situation in the field as to which the application of a statute is unclear—however clear it may later become. A law prohibiting "vehicles" in the park either covers Segways or not, see A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 36-38 (2012), but an officer will nevertheless have to make a quick decision on the law the first time one whizzes by. 

Contrary to the suggestion of Heien and amici, our decision does not discourage officers from learning the law. The Fourth Amendment tolerates only reasonablemistakes, and those mistakes—whether of fact or of law— must be objectivelyreasonable. We do not examine the subjective understanding of the particular officer involved. Cf. Whren v. United States, 517 U. S. 806, 813 (1996). And the inquiry is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation. Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is dutybound to enforce. 

Finally, Heien and amici point to the well-known maxim, "Ignorance of the law is no excuse," and contend that it is fundamentally unfair to let police officers get away with mistakes of law when the citizenry is accorded no such leeway. Though this argument has a certain rhetorical appeal, it misconceives the implication of the maxim. The true symmetry is this: Just as an individual generally cannot escape criminal liability based on a mistaken understanding of the law, so too the government cannot impose criminal liability based on a mistaken understanding of the law. If the law required two working brake lights, Heien could not escape a ticket by claiming he reasonably thought he needed only one; if the law required only one, Sergeant Darisse could not issue a valid ticket by claiming he reasonably thought drivers needed two. But just because mistakes of law cannot justify either the imposition or the avoidance of criminal liability, it does not follow that they cannot justify an investigatory stop. And Heien is not appealing a brake-light ticket; he is appealing a cocaine-trafficking conviction as to which there is no asserted mistake of fact or law.

I blogged about this case back in November, and noted that this case could have significant implications for California's law of search and seizure. At the time, I was posting on the San Diego County Superior Court Appellate Division's opinion in People v. Campuzano. There, the Court held that a police officer's mistake of law rendered a stop unreasonable when the officer stopped a suspect who was riding his bicycle on the sidewalk. While the officer thought that riding a bicycle on the sidewalk was illegal if it was done in a commercial district, the Court concluded that the bicycle needed to be ridden in front of a business that was operational. Because the defendant in Campuzano was not riding his bicycle in front of an operational business, the officer's conclusion that the defendant had violated the law was mistaken, and the court held that this mistake of law rendered the stop unconstitutional.

After Heien, however, the decision in Campuzano is no longer the law in California. Article One, section 28(f)(2) of California's Constitution establishes that rules excluding evidence in criminal cases are to be only as broad as federal constitutional rules. The California Supreme Court affirmed this limitation in In re Lance W. This means that California's constitutional law of search and seizure cannot exclude a broader range of evidence than the United States Constitution.

Accordingly, the blanket statement by the Court in Campuzano that "[a] traffic stop based on a mistake of law is unreasonable and not subject to the good-faith exception," cannot be cited even as persuasive authority in California. Under Heien, as long as the officer's belief that the defendant has broken some law is reasonable, any ensuing traffic stop is also reasonable.

Questions remain regarding just how much of a mistake of law is permitted under the "reasonable mistake of law" exception. But I would not be surprised if the officer's mistake in Campuzano fell within this exception, and it will be interesting to see how lower courts define the scope of this new facet of Fourth Amendment doctrine.

OCTOBER 2019 UPDATE

In reviewing this post, I found that Campuzano was erroneously labeled as a Court of Appeal case, rather than a case from the appellate division of the San Diego Superior Court. While decisions from superior court appellate divisions may be cited as persuasive authority, they are not binding. The post has been updated to correct this error.