On GPS and Parking Lots

Foremost, my apologies to readers for a belated posting. Finishing law school, gathering material for the Bar Exam, and training for a Half-Ironman has reduced my time allowances for pet projects sharply.

Fortunately, there have not been many notable 4th Amendment cases coming out of the Federal Circuit in the last few days, so I have somewhat of an excuse for non-performance (smile).

However, this morning I caught wind of a case out of the U.S. Court of Appeals for the Eighth Circuit, pertaining to GPS surveillance, and Miranda warnings to a person whose primary language is not English.

Jouse Acosta Marquez was involved in a marijuana trafficking ring, which led to local Iowa authorities determining that the ring regularly used three (3) pick-up trucks, one of which was a white 2006 Ford with various characteristics that are immaterial.

The police affixed a GPS device on the bumper of the white Ford, while it was parked in a Wal-Mart parking lot in Des Moines. Investigators changed the battery on the GPS seven times during the course of the investigation, all the while the truck was parked a public place.

Investigators also acquired Federal wiretaps on two mobile phones, from which they intercepted hundreds of calls between the defendant and other members of the drug trafficking conspiracy.

After the police secured a search warrant on multiple locations in Colorado and Iowa, which turned up, inter alia, assault rifles, marijuana paraphernalia, and other incriminating evidence, the police knew they were on to something. On a traffic stop the same day, the police arrested the defendant, at which time he was read his Miranda rights, and signed a form waiving his right to remain silent. He admitted he had purchased small amounts of marijuana, and he had driven the trucks to and from Denver for drop-offs.

During a pre-trial suppression hearing, the defendant argued that his poor English prevented him from making a "knowing and voluntary waiver" of his Miranda rights. He also argued that the GPS violated his Fourth Amendment rights. Incidentally, the defendant's girlfriend, Nicole May, testified that the defendant spoke "[c]onversational English".

In light of this evidence, the Court concluded that the defendant had the capacity to knowingly and voluntarily waive his Miranda rights.

As to the issue on 4th amendment infringement, the Court held, consistent with U.S. v. Gomez, 16 F.3d 254, 256 (1994), that he did not have a reasonable expectation of privacy in the area searched, as the defendant "neither owned nor drove the Ford and was only an occasional passenger therein..."

Perhaps the most contentious part of Justice Wollman's Opinion, is his reasoning why the placement of the GPS device on the Ford was constitutional; "The installation was non-invasive and occurred when the vehicle was parked in public. The police reasonably suspected that the vehicle was involved in interstate transport of drugs. The vehicle was not tracked while in private structures or on private lands. The device merely allowed the police to reduce the cost of lawful surveillance."

There are three points of consideration I find to be noteworthy;

1) The permissive scheme of the police to affix a GPS to a vehicle, based on mere "reasonable suspicion" appears to be a liberal grant of authority to law enforcement, without any possible recourse by the operator of the vehicle.

2) While U.S. v. Knotts, 460 U.S. 276 (1983), tells us that a person traveling via automobile on public streets has no reasonable expectation of privacy in his movements from one locale to another ( Knotts at 281), how ought a court address a stationary car in a public parking lot? Does the public nature of the location trump the vehicle itself?

3) What does it mean that a vehicle can be subject to a GPS application, as long as the vehicle is in a public place, and te police have reasonable suspicion? And what weight does the “cost” of lawful police surveillance have when juxtaposed with the “weight” of civil liberties?

FISA and State Secrets

Re: Al Haramain Islamic Foundation, et al. v. Barack H. Obama, et al.


FOREIGN INTELLIGENCE SURVEILLANCE ACT

In light of the terrorist attacks of September 11, 2001, the federal government has begun a sweeping overhaul of the nation’s surveillance powers. Many of these changes have been implemented on the grounds that the federal government has the express authority to protect the homeland and its’ citizens from foreign or domestic threats.

One of the more invasive means of achieving this goal is the Foreign Intelligence Surveillance Act, found at 50 U.S.C. §1801 (“FISA”). Under FISA, government officials in limited circumstances may eavesdrop on telephone conversations without a FISA warrant. FISA affords civil remedies to “aggrieved persons” who can show they were subjected to warrantless domestic security surveillance. Under the Supremacy Clause of Article VI of the United States Constitution, FISA takes precedence over the so-called “state secrets privilege”.

To prove a prima facie case of unlawful electronic surveillance under FISA, the plaintiff must present specific and articulable facts showing they are an “aggrieved person” within the meaning of §1801, and they have met this burden using non-classified evidence.

Between March and June of 2004, several phone conversations occurred between attorneys Wendell Belew and Asim Ghafoor, both of who are U.S. citizens. These conversations also included Soliman al-Buthi, a director of Al-Haramain located in Saudi Arabia. The foregoing parties were discussing ideas for the defense of Saudi nationalists with ties to Osama Bin Laden, whom were being sued by victims of the September 11 attacks.

Unknown to the plaintiff, the plaintiff had been classified by the government as a “Specially Designated Global Terrorist”. The National Security Agency thereafter began intercepting their telephone communications without a warrant. The plaintiffs sued for civil damages, claiming violations of their 1st, 4th, and 6th Amendment rights under the U.S. Constitution. The plaintiffs also sued under a breach of the separation of powers doctrine, and the International Covenant on Civil and Political Rights.

As part of their argument, the plaintiffs sought production of a so-called “Sealed Document”, which at the time of the request, was in the custody and control of the defendant. The Defendant moved to dismiss, under the common law state secrets privilege. The defendants argued that if disclosed, the disclosure would, inter alia, undermine national security. The District court rejected the Defendant’s argument, arguing that “plaintiffs should have an opportunity to establish standing and make a prima facie case, even if they must do so in camera.” The defendants appealed.

On appeal, the Appeals court was faced with three (3) issues: 1) Whether the subject matter of the litigation is a state secret; 2) Whether the plaintiff has standing to bring about a suit; 3) Whether the plaintiff can establish a prima facie case, (and the government can defend) without using state secrets. The Appeals court concluded that the subject matter of the litigation was not a state secret. The court also concluded that but for the “Sealed Document”, the plaintiff would not have standing. (Incidentally, the defendants denied plaintiffs’ counsel any access to classified filings, despite a determination by the plaintiff’s counsel that plaintiff was entitled to top secret clearance. The court reversed and remanded the District court’s ruling, stating that because the disclosure of the Sealed Document would undermine national security and the government’s capabilities, disclosure is barred. Accordingly, the Appeals court remanded the case.

On remand, the Defendants filed a second motion to dismiss, claiming the plaintiff’s FISA action did not pre-empt the state secrets privilege. The Defendants further argued that the court lacks jurisdiction, because sovereign immunity has not been waived by section 1810 of FISA. The District court denied this motion. The Defendants also argued that the this is not a FISA-controlled case, and therefore, they are authorized to hide all facts helpful to the plaintiff behind the state secrets privilege. The court also sternly rejected this contention. Finally, the Defendants argued that the plaintiff failed to meet their burden of proof, insofar as they were under “surveillance”. Accordingly, the plaintiffs moved for Summary Judgment.

The court that granted the Plaintiff’s motion for Summary Judgment, holding that the State Secrets Privilege does not afford the defendant’s the ability to conceal their FISA warrant. The court then went further, stating that there was no such warrant for the surveillance of the plaintiffs.

In their ruling for the plaintiffs, the court held that the plaintiffs have submitted sufficient evidence to establish a prima faciae case that they were an “aggrieved” party, whom were also subject to warrantless searches. Curiously, the Court further states that one not need be the target of electronic surveillance to be an “aggrieved person”


CONSITUTIONAL CONSIDERATIONS

Arguably, the most unique quality of constitutional law is its’ adjustability to contemporary contexts. In the instant case, the Court was asked to determine how 21st century electronic surveillance comports with constitutional amendments which are centuries old. Despite the specificity of the holding, there remain numerous issues which remain unanswered. I will address each of these issues in turn.

Federal Courts must be careful when they tread into the waters of politics. While Federal Court jurisdiction is wide, it is specifically limited. Federal Courts may not hear issues which involve political questions. A political question is one which is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it” Nixon v. U.S., 113 S.Ct. at 733 (1993). I find it troubling that the Federal District Court of Northern California was afforded jurisdiction in this matter. Because the National Security Agency is under the control of the Department of Defense, it is within the Executive Branch. However, it shares a unique nexus with the Judicial Branch, as evidenced by the warrant requirement for electronic surveillance. By definition, this would fall within the definition of a political question under Nixon. Therefore, an argument can be made that the case could not have been heard by the District Court.

The next issue the plaintiffs present is a violation of the 1st, 4th and 6th Amendments to the United States Constitution. In the spirit and custom of brevity, this memorandum will only address the implications under the 4th Amendment. The Fourth Amendment states that

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Subsequent to the enactment of FISA, the courts have interpreted the provision of the Act authorizing the electronic surveillance of an agent of a foreign power, to require a lesser showing of probable cause. The reason for this reduced level of justification is to meet the legitimate need of the government to gather intelligence information, while protecting the rights of citizens. The courts have held this requirement to be consistent with the warrant requirement clause of the Fourth Amendment. See U.S. v. Pelton, 835 F.2d at 1075 (1987). However, safeguards have been implemented to ensure the protections afforded under the 4th Amendment are not infringed. Inter alia, Pelton stands for the proposition that both judicial review and a showing of reduced probable cause are required to obtain a FISA warrant. Id. It appears that the opinion issued by Justice Walker is consistent with this standard.
One of the issues that remain to be unanswered by this decision is the level of cause needed to justify a domestic surveillance versus an international surveillance. Incidentally, both counsel for the plaintiff in the instant case are U.S. citizens. These attorneys, together with their client, have had numerous telephonic conversations within the United States. However, they have also had international conversations. Applicable case law and a meticulous reading of the statute give insight as to the level of cause required to conduct both forms of surveillance. FISA allows domestic use of intercepted evidence in a criminal prosecution as long as a "significant" international objective was in view at the intercept's inception. In other words, the primary objective must be for international surveillance, while domestic surveillance is secondary, and only admissible under limited circumstances. However, this is neither raised by the parties, nor addressed by Justice Walker in his opinion. In essence, evidence of a domestic crime acquired during an intercept under FISA that is reasonable (because officers have probable cause to believe it concerns traffic between a foreign state and one of its agents in the United States), can be used in a domestic prosecution without offending the Fourth Amendment. See U.S. v. Ning Wen, 477 F.3d, at 898 (2007)
Another issue that remains unanswered is the level of cause necessary to suppress evidence when the State Secrets Privilege is invoked. In the instant case, the Plaintiff adequately presented “a showing of necessity”, or “admittedly substantial need for the document to establish its case,” under United States v. Reynolds, 345 US at 10, (1953). In response to this necessity, the defendant moved to suppress the evidence under the State Secrets Privilege. After the Appeals court conducted an in camera review of the evidence, the court wrote “We are satisfied that the basis for privilege is exceptionally well documented” and that disclosure of “information concerning the Sealed Document and the means, sources and methods of intelligence gathering in the context of this case would undermine the government’s capabilities and compromise national Security.” 507 Fed.3rd at 1204. Despite this sweeping language, the Appeals court did NOT articulate the level of cause they applied in reaching their decision. Nevertheless, the “Sealed Document” was barred from disclosure.
CONCLUSION
The central issue presented before the U.S. District Court for the Northern District of Californian was whether the government is civilly liable for eavesdropping on their telephone conversations without a FISA Warrant. The government ultimately denied the defendant’s motion to dismiss the matter, and granted the plaintiff’s motion for summary judgment.

At first glance, government officials acting under FISA have broad authority. Whereby, in certain circumstances, they may eavesdrop on telephone conversations without a FISA warrant, for both international and domestic criminal prosecutions. While factually I find this finding to be ethically troubling, I applaud Judge Walker for strictly applying the law, as outlined in Section 1801 of the United States Code.

Additionally, the Al-Haramain matter raises important issues regarding the State Secrets Privilege; Specifically, the court’s decision that a claim of an unconstitutional application of FISA takes precedence over the privilege. Incidentally, the exact definition of “state secret” remains unanswered. Nevertheless, it appears that the Federal Courts are slowly beginning to reign in the broad police power afforded to federal officials under FISA, while still maintaining a clandestine approach to defining “state secret”.

Choice of Words

One of the more remarkable things about Search & Seizure law is its’ inherent kinetics. The law constantly adapts and shifts and molds itself to the new facts of each case. More often than not, the author finds the application of the facts to centuries’ old law a fascinating study.

One of the areas of application which barely left the proverbial incubator is the search of computers and auxiliary components. While the law is still being determined, a select number of state and federal courts have grappled with this issue. One of the more recent developments in this saga was the case Commonwealth v. Michael McDermott, 448 Mass. 750 (2009).

Mr. McDermott murdered seven people in cold blood, in an office park in Wakefield, Massachusetts the day after Christmas back in 2000. The defense constructed an elaborate insanity defense, which the jury ultimately didn’t believe, resulting in his life incarceration.

However, what I found peculiar about this case was the explanation of the word “paranoia”. The defense brought experts to testify as to the defendant’s state of mind. While one expert, a Dr. Rogers, endeavored to define “paranoia” she used a sensitive series of words: “September 11th”.

Dr. Rogers testified: “Paranoia is the perception that other people might mean to do you harm… I mean, just to explain it in general terms, after the September 11th attack in this country I think most of us felt a little paranoid, and we might have used that word, in the sense that we expected something bad or adverse to – .”

Seemingly unable to control his own witness, the defense counsel moved for a mis-trial, on the grounds that in a case involving multiple homicides, “the prejudice from such evidence was ‘considerable’ and violated due process.”

The judge rejected this contention, stating “it is difficult to imagine that the jury could have been unduly influenced, by the witness’ spontaneous remark.”, citing Commonwealth v. Martino, 412 Mass, at 282.

Evidently, even on direct examination, certain words carry with them an implicit meaning which can be construed as prejudicial.

It appears, the wound from that day has yet to completely codify.

The Garden State And Laptops

As a general rule, there isn’t much worth writing about with regard to New Jersey. However, on Tuesday, the State’s highest court came down with holding that was a win for plaintiffs and ethics.

Marina Stengart was an Executive Director of Nursing at Loving Care Agency, Inc., a health care provider. She was issued a company lap top, and signed an employee handbook which stated that personal use was permitted on a limited basis.

While on the company laptop, she e-mailed her attorney through a private, password encrypted e-mail on Yahoo. The attorney replied many times. The subject of the e-mail conversations was an anticipated action against her employer for discrimination on several grounds.

She left the company, and filed suit. Anticipating discovery, the employer hired forensic experts to scrape all the material off the hard drive of Stengart’s former lap top. She moved to suppress the information, on the grounds she had a reasonable expectation of privacy, and that it was subject to attorney client privilege. The trial court held for the employer, and the appeals court reversed, holding for Stengart, on the grounds that she had a reasonable expectation of privacy.

The employer appealed to the New Jersey Supreme Court. The matter was a case of first impression for Jersey, so the Court relied on a Massachusetts case, National Economic Research Associates v. Evans, as at he controlling case. Evans had nearly identical facts, and the Court held for the employee. Here, the Court concluded not only that the employee had a reasonable expectation of privacy, but that the Counsel for the employer violated Rule 4.4 of the Model Rules, by failing to inform the employee that they had privileged information upon immediate receipt of the information. The Supreme Court of New Jersey, by a 7-0 vote, affirmed the judgment, and remanded it to the trial court to determine what, if any, sanctions were appropriate.

Well done, New Jersey.

Reversed

The Supreme Judicial Court (as of March 11, 2010) now has reversed the foregoing Appeals Court decision.

On March 11, 2010, the SJC effectively declared that the shelter was the juvenile's "home". And therefore, there was an expectation of privacy. James Otis would be proud.

Now, to determine whether there is a "subjective expectation" of privacy, it must be, inter alia, one that society recognizes as reasonable.

Firearms, Miranda and The Shelter Resident

Two recent cases out of Massachusetts have come to my attention that I believe merit discussion.

The Massachusetts Court of Appeals in Commnwealth v. Porter, 73 Mass.App.Ct. 85 (2008), examined whether a juvenile defendant has a reasonable expectation of privacy in a shelter that he and his mother inhabited in the Roxbury neighborhood of Boston.

While residing in the shelter, word spread that the juvenile was harboring a firearm and ammunition. After the shelter director became worried of harm or the threat of imminent bodily injury, she contacted the Boston Police Department, who arrived on scene and discussed the shelter’s policies regarding firearm possession. It turned out that the shelter had a zero tolerance policy for a firearm possession in the shelter. The police obtained a master key from the shelter director, entered the room, and seized the firearm and ammunition. The court refused to suppress the evidence, on the grounds that “Here, the defendant and his mother lived in a room in a twenty-four room shelter. The department paid their rent. They could not choose their room, and could be transferred to another room if deemed necessary by the shelter. They voluntarily agreed to live in a highly regulated environment, where shelter staff were charged with maintaining order, discipline, and a safe environment.” Porter, at 92. In short, the Court stated that the defendant had no reasonable expectation of privacy in a public shelter.

What I found particularly fascinating about this case was the court’s decision regarding the statements made by the defendant as the police entered the room. When the police entered the room, the defendant stated that “the gun had no bodies on it, it’s clean”. The court opined that the statement was “…not the product of custodial interrogation, and thus, does not implicate Miranda. Although the defendant may very well have been in custody at the time of the statements, the judge found that the defendant made the statements spontaneously and not in response to any specific questioning. The defendant concedes this point. Accordingly, we reverse the judge's suppression of the statements.” Porter, at 96.

At any rate, the case is worth noting because to the dual application of the 4th amendment of the U.S. Constitution and Article 14 of the Massachusetts Constitution, as well as facts that warrant Miranda.

The Police Power of Texas and the 4th Amendment

The Court of Appeals of Texas on March 5 came down with a unique turn on the issue of 4th Amendment rights in public schools. The case In The Matter of D.H., Appellant, a minor was attending a public school in Texas in October of 2006. Officers from the Austin Police Department arrived at her High School, to perform a K-9 search of the school, as directed by the school principal.

The officers went from classroom to classroom, informing teachers to evacuate the classrooms, ordering students to leave their belongings behind. After the rooms were evacuated, the police and dogs would enter and sniff all of the belongings. The appellant, D.H. had a “small bag of marihuana” in her backpack.

On appeal, D.H argued that the seizure occurred when she was required to leave it behind, and because neither the school nor the police had reason to believe she was engaged in criminal activity, the lacked “reasonable suspicion to seize her bag”

In their Opinion, the Court reasoned that:

“The students themselves were not sniffed and they were not in the room while the dog sniffed their belongings. Only Perez, the dog, and the two officers were present when the dog alerted on D.H.'s backpack. Thus, D.H. was not exposed to embarrassment or scrutiny by her classmates while the inspection was taking place. She was not required to open her bag in front of anyone until after the dog alerted, and then the contents of the bag were only seen by Perez and the police officers. Given the method employed in conducting the canine inspection and the minimally intrusive nature of the inspection, we hold that the invasion of D.H.'s privacy was not significant.” In re D.H. 2010 WL 744117, 3 (Tex.App.-Austin) (Tex.App.-Austin,2010)

In fairness, the Assistant Principal testified that the school knew of a drug problem, including, but not limited to, the trafficking of marihuana. At the end of the day, the Court held that “D.H. brought her backpack into a public school, where she was required to temporarily surrender its possession and leave it in the classroom to be sniffed by a dog. Given D.H.'s reduced expectation of privacy, the low level of intrusion involved in the dog's inspection of the airspace surrounding her backpack, the limited information gathered, Reagan High's interest in combating drug abuse, and its tutelary and custodial responsibilities for its students, we hold that the detention of her backpack was reasonable and thus constitutionally permissible.” Id., at 4

What I find most unique about this case is the disregard for the Tinker principle, i.e. “students in public schools do not ‘shed their constitutional rights…at the school house gate.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969) Notwithstanding that this case is a product of the Lone Star state, it demonstrates the vast police power which states are now afforded under a strict reading of the 4th Amendment.