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Several of the justices struggled with the Trump administration's position that the government does not need a warrant when it seeks digital data from cell phones that reveal users' locations. Deputy Solicitor General Michael R. Dreeben stressed that individuals have diminished privacy rights when it comes to information that has been voluntarily turned over to a third-party, such as a phone company.

But while the justices pushed back on Dreeben's arguments, they didn't seem to all share the same rationale.

Justice Sonia Sotomayor, for example, said she feared a "dragnet sweep" on the part of the government and she noted that cell phones have become an "appendage" for people in the modern era. She noted that a cell phone can be pinged in bedrooms and doctor's offices.

"Most Americans, I still think, want to avoid Big Brother," she said. "They want to avoid the concept that government will be able to see and locate you anywhere you are at any point in time."

Other justices questioned whether they should draw a line based on the sensitivity of the data when considering what kind of information should trigger Fourth Amendment protections.

Justice Elena Kagan worried about long-term surveillance that she referred to as "24/7 tracking."

Chief Justice John Roberts seemed to disagree with the government's position that the collected information belonged to the cell service company and did not implicate the privacy of the customer.

"The person helps the company create the record by being there and sending out the pings," he said.

Justice Neil Gorsuch, alone, questioned whether the case should be decided on trespass grounds instead of taking a privacy-based approach.

Dreeben pushed back, telling the justices that while the technology is new, established legal protections are sufficient to deal with privacy concerns.

His arguments seemed to gain the most support from Justices Samuel Alito and Anthony Kennedy. Alito acknowledged the privacy concerns of new technology but he worried about existing precedent that the justices might "declare obsolete."

How the justices decide the case could provide a framework for other issues, including the future of the government's surveillance power. Privacy advocates say the case could impact everything from digital medical records and search queries on Google to smartwatch data.

Most courts have held that there is a diminished privacy interest when it comes to cell-site location data because the information has already been voluntarily provided to phone companies or third parties.

"This case is the first chance to start to set reasonable limits applicable to requests for these kinds of digital-age records by making clear that a warrant will sometimes be required," said Nathan Freed Wessler, an American Civil Liberties Union lawyer opposing the government in the case.

The case

The controversy arose after a string of nine armed robberies were carried out at Radio Shack and T-Mobile stores in Michigan and Ohio.

One of the robbers, who confessed to the crimes, gave the FBI his cell phone number and the numbers of other participants in the scheme. Pursuant to the Stored Communications Act, a law that authorizes the government to obtain cell service providers' records under certain circumstances, the FBI obtained cell-site data for a Timothy Carpenter. The information -- over a range of 127 days -- placed Carpenter in the vicinity of the robberies.

Carpenter was later convicted of aiding and abetting the crimes, based in part on the location data.

Lawyers for Carpenter moved to suppress the cell-site evidence, arguing that the "reasonable grounds" standard necessary for the information under the federal law was too low a bar. Instead, they argued that the Fourth Amendment required the government to obtain a search warrant pursuant to a higher standard of "probable cause" before obtaining the data.

The Fourth Amendment protects the right of people to be "secure in their persons, houses, papers and effects, against unreasonable searches and seizures."

A federal appeals court ruled in favor of the government, holding that while the Fourth Amendment "protects the content of the modern-day letter," courts have not yet "extended those protections to the internet analogue to envelope markings, namely the metadata used to route internet communications, like sender and recipient addresses on email, or IP addresses."

The opinion, penned by Judge Raymond Kethledge of the US Court of Appeals for the Sixth Circuit, held that the business records in the case "fall on the unprotected side" of the Fourth Amendment.

The appeal

The ACLU appealed the case to the Supreme Court on behalf of Carpenter and warned the justices of the privacy implications at stake.

"Allowing law enforcement to obtain such records free and clear of any Fourth Amendment restrictions would dramatically shrink the amount of privacy that people enjoyed from the time of the Framing through the dawn of the digital age," Wessler argued. He allowed that the government could obtain the information without a warrant for a time period under 24 hours, but after that, a warrant is likely necessary.

Dreeben countered in briefs that the petitioner "has no legitimate expectation of privacy in the business records his providers made of the cell towers used to route calls to and from his cell phone."

He wrote that "cell phone users are aware that they must be in a tower's coverage area to use their phones, and they must understand that their provider knows the location of its own equipment and may make records of the use of its towers."

Dreeben was making his first appearance back at the Supreme Court since he was detailed to work with special counsel Robert Mueller on the Russia investigation.

Nineteen states have filed a brief in support of the government, emphasizing that the cell-site data is general in nature. Lawyers for the states acknowledge, however, that other cases concerning "more sensitive data" could raise distinct concerns that should be addressed in future cases.

Technology and precedent

Roberts has long said that some of the court's most challenging cases involve applying long-held rules created by the courts to quickly developing technology.

In 2014, a unanimous court said that a warrant was needed in most cases before searching a cell phone. In 2012, the court had ruled on trespass grounds that longer-term GPS monitoring was a search triggering Fourth Amendment protections. But Sotomayor signaled in that case that the court might need to revisit court precedent holding that privacy rights are diminished if the information has already been turned over to a third party.

In court briefs, the ACLU said that from July 2015 to June 2016, AT&T received 75,302 requests for cell phone location information.

The case has attracted the attention of leading technology companies such as Facebook, Google and Apple. They have filed a brief in support of neither party in the case at hand, but instead they advise the court to "forgo reliance on" outmoded rules such as whether the information has been shared with a third party. They encourage a flexible doctrine with a focus on the sensitivity of the data at issue.

"The court should refine the application of certain Fourth Amendment doctrines to ensure that the law realistically engages with Internet-based technologies with people's expectations of privacy in their digital data," Seth Waxman, a lawyer for the companies, argued.

Fourth Amendment expert Orin S. Kerr, who will begin teaching at the University of Southern California in January, filed a friend of the court brief in support of the government in the case, arguing that the collection of historical cell-site data is unprotected by the Fourth Amendment and is the modern-day equivalent of information gathered from an eyewitness to suspicious conduct.

"On the one hand, the Fourth Amendment extends constitutional protections to a person's 'houses, papers and effects' from unwarranted government interference," he argued in court papers. "On the other hand, the Fourth Amendment offers no protection from government surveillance in public.

"Just as a person voluntarily exposes himself to observation by traveling in public to deliver communication, so does a person voluntarily expose himself to observation by hiring an agent to deliver his communications remotely."

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Supreme Court takes on major Fourth Amendment case ...

Since the search last week of the office, home, hotel room, and safe deposit box of Michael Cohen, President Trumps personal attorney, lots of lawyers have been squaring off about an important legal issue that rarely gets banner-headline billing: How does the government, armed with a warrant for a criminal suspects digital files, go about sorting through those files in a way that ensures that constitutional and legal rights are not violated?

The risks of wrongful privacy invasions are too great to leave to the prosecutors when the government seizes digital data. Such files should be reviewed in the first instance by a neutral party, or special master, appointed by and answerable to the court, to ensure that the prosecutors and investigators get the evidence they are authorized to look for. They should not be allowed to roam widely through digital files that may contain terabytes of private information.

Cohen has claimed that because he is an attorney for Trump and others some of the seized files may be entirely off-limits to the government because they are protected by the attorneyclient privilege. President Trumps lawyers have made similar arguments. Both have asked the court to allow their legal teams to have the first cut at the seized files in order to review them for privilege, and then to produce the remainder to the government or a special master. The government has countered that the court should allow a so-called taint team, made up of prosecutors who are not assigned to the case and who are technically walled off from those working on the case, to do the sorting. The court is now considering the parties arguments and is expected to rule quickly.

How the court decides this issue is not just of interest to Trump and Cohen, but to everyone. As we continue our march into an ever-more-digital world, how the Fourth Amendment adapts to account for major changes in how we store our papers and other constitutionally protected materials will significantly shape our societys notions of privacy, justice, fairness, and government power. Weve always had concerns about government overreach in criminal investigations, and those concerns are heightened when prosecutors and police can seize massive amounts of data the equivalent of every file in your office, your photo albums, your diaries, your personal letters, the contents of your dresser drawers, and more, all at once.

The Cohen case has so far been seen through the lens of the attorneyclient privilege. Invoking the attorneyclient privilege is not an absolute shield from being subject to government search warrants. However, the fact that the search yielded so many electronic devices makes this an issue of even broader constitutional importance. According to Cohens attorney, in addition to 10 boxes of paper documents, the government seized more than a dozen of Cohens electronic devices in its search of his office, home, hotel room, and safe deposit box.

As the governments lawyer, Thomas McKay, conceded in court on Monday, the real volume of material will come from electronic files. Thats because a single large hard drive could contain libraries worth of stuff. And the immense storage capacities of digital drives, computers, and phones mean that all of the information covered by a given warrant will reside alongside a great deal of other information that the government has no justification to have at all.

This state of affairs creates a serious risk as in any case involving the seizure of digital information that the government might see files or other information that were never covered by the original warrant. Under the Fourth Amendment, a warrant must be based on two important elements: probable cause that evidence of a crime will be found, and particularity the principle requiring a warrant to be tailored to the target of the search and the materials it is expected to yield. These constitutional requirements ensure that the government only takes what it has good reason to access.

When the government executes a search warrant, it sometimes stumbles into things it never anticipated finding. When such things are incriminating and are located in plain view meaning that they are encountered by law enforcement during the reasonable execution of a lawful search the government is entitled to seize them. For example, if government agents execute a warrant to seize a rifle in your apartment and they unexpectedly find drugs in your guitar case, the drugs are fair game, since the rifle might have been stored there. But if the government is searching for a rifle and finds drugs in your spice box, it generally wont be allowed to charge you for possessing them, because looking for a rifle in a spice box is not reasonable.

While the plain view doctrine might make some sense when the search involves physical objects, searches of digital files present serious challenges to it. For example, the government cant always search a hard drive for photographs without opening Microsoft Word documents, since photographs could be saved inside such files. As a result, a full-blown plain view doctrine as applied to a search of a computer or smartphone could mean that even a narrow warrant for very particular items could end up allowing the government to search the whole computer or phone, and seize anything incriminating it finds there.

Unless they are limited by specific court instructions, the use of government-staffed taint teams would not solve this problem. After all, such teams still work for the government, and may seek to exploit the plain view doctrine, or seek a new warrant for information they come across in the sorting process (based on information it never had a right to have in the first place). A special master or, perhaps, a magistrate judge appointed by a neutral district court judge would ensure that an independent party plays the role of filter, and that the actual search is strictly limited by the bounds of the warrant.

That is why, in various cases, the ACLU has argued that courts should appoint special masters to review seized digital material in these kinds of situations. Having a non-governmental party determine whether each documents seizure has been individually supported by a valid warrant ensures that digital searches remain tailored to evidence for which the government has probable cause (and, as in the Cohen case, are not subject to a valid claim of attorney-client or other privilege). The procedure ensures that when unforeseen issues arise for example, claims by third parties that some of the seized information is actually theirs the government does not automatically gain access to information to which it will ultimately not be entitled. (Here, for example, the lawyer for Stormy Daniels, whom Cohen paid $130,000 in 2016, has claimed that his client may have a strong privacy interest in some of the seized material.)

In a 2010 case involving a government search of records related to drug testing of Major League Baseball players, the Ninth Circuit Court of Appeals explained that the process of segregating electronic data that is seizable from that which is not must not become a vehicle for the government to gain access to data which it has no probable cause to collect. In a concurring opinion, five judges of that court suggested that before obtaining warrants to conduct digital searches, the government should forswear entirely any reliance on the plain-view doctrine in order to ensure strict compliance with the Fourth Amendment.

In the Cohen case, because the government obtained a warrant for some of the seized material, the TrumpCohen proposal to have a first cut of what the government has seized would seem to be an end-run around what a court already authorized. But the governments plea to use its own taint team, in part because it is more efficient, would pose serious risks in the other direction. At yesterdays hearing, Judge Kimba Wood explained that she has faith in the Southern District U.S. Attorneys office, emphasizing that their integrity is unimpeachable. But how to manage searches of digital information, like any other evidence, is not a matter of expediency or any partys good faith its a matter of ensuring that the government complies with the Constitution.

That was apparently not lost on Judge Wood, who told the parties that she was considering ordering the use of a special master in the Cohen investigation. She should not least because if she does, she will be ensuring that anyone subject to a seizure of electronic devices will have a prominent example to point to when claiming these constitutional protections in the future.

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Who Should Review Michael Cohens Files Under the Fourth ...

United States Supreme Court case

Georgia v. Randolph, 547 U.S. 103 (2006), is a case in which the U.S. Supreme Court held that without a search warrant, police had no constitutional right to search a house where one resident consents to the search while another resident objects. The Court distinguished this case from the "co-occupant consent rule" established in United States v. Matlock, 415 U.S. 164 (1974), which permitted one resident to consent in absence of the co-occupant.

Respondent Scott Randolph and his wife, Janet Randolph, separated in late May 2001, when she left the marital residence in Americus, Georgia, and went to stay with her parents in Canada, taking their son and some belongings. In July, she returned to the Americus house with the child; the record does not register her motive for returning.

On the morning of July 6, she complained to the police that, after a domestic dispute, her husband had taken their son from the marital residence, and when the police reached the Randolph house, she told them that her husband was a cocaine user whose drug use habit had caused the family financial troubles. She mentioned the marital problems, saying that she and their son had only recently returned after a several weeks' stay with her parents. Shortly after the policemen arrived, Scott Randolph returned, explaining to them that he had removed their son to a neighbor's house, worried that his wife might again take the boy out of the U.S.; Scott Randolph denied using cocaine, and countered that it was his wife, Janet, who used illegal drugs and abused alcohol.

One of the policemen, Sergeant Murray, went with Janet Randolph to reclaim the Randolph child from the neighbor; when they returned, she renewed her complaints about her husband's drug use and volunteered that there were items of drug evidence in the house. Sergeant Murray asked Scott Randolph for permission to search the house; he refused. The sergeant then asked Janet Randolph's consent to search the Randolph house, which she readily gave, and then led him to an upstairs bedroom she identified as Scott's, where the sergeant noticed a section of a drinking straw with a powder residue he suspected was cocaine. He then left the house to get an evidence bag from his patrol car, and to call the district attorney's office, which instructed him to stop the search and apply for a search warrant. When Sergeant Murray returned to the house, Janet Randolph withdrew her consent to searching the house. The police took the drinking straw to the police station, along with the arrested occupants. After obtaining a search warrant, they returned to the Randolph house and seized further evidence of illegal drug use, on the basis of which Scott Randolph was indicted for possession of cocaine.

At court, Scott Randolph moved to suppress the evidence, as products of a warrantless search of his house, unauthorized by his wife's consent over his express refusal. The trial court denied the motion, ruling that Janet Randolph had "common authority" to consent to the search.

In a 5-3 opinion written by Justice Souter, the Court held a co-resident could refuse consent to a police search, even if another resident consented.[1] Specifically:

The question here is whether such an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent. We hold that, in the circumstances here at issue, a physically present co- occupant's stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.

The Court's decision distinguished its previous rulings in Illinois v. Rodriguez, 497 U.S. 177 (1990) and Matlock. In Rodriguez and Matlock the police obtained voluntary consent from a co-occupant at the residence and found evidence implicating another resident who was not present when the police obtained consent. The Court said that the present case was different from the previous two in that the co-resident was not present to refuse consent to the search. In Rodriguez the co-occupant who later objected to the search was asleep in a bedroom within the residence; in Matlock, the later-objecting co-occupant was located in a nearby police vehicle.

Justice Alito, who had yet to be confirmed when the case was argued, did not participate in the argument or decision of the case.

Justices Stevens and Breyer separately concurred with the Court majority opinion. Justice Stevens's concurrence attacked the "originalists" view of the Fourth Amendment, noting that the search would remain prohibited had the Court attempted to apply the law based upon the meaning intended by the Founding Fathers, noting that when the Fourth Amendment was written, the law of the time would have made the husband the "master of his house":

In the 18th century . . . given the then-prevailing dramatic differences between the property rights of the husband and the far lesser rights of the wife, only the consent of the husband would matter. Whether "the master of the house" consented or objected, his decision would control. Thus, if "original understanding" were to govern the outcome of this case, the search was clearly invalid because the husband did not consent. History, however, is not dispositive, because it is now clear, as a matter of constitutional law, that the male and the female are equal partners.

Justice Breyer's concurrence stressed that the majority opinion was rather specific, writing "the circumstances here include the following":

The search at issue was a search solely for evidence. The objecting party was present and made his objection known clearly and directly to the officers seeking to enter the house. The officers did not justify their search on grounds of possible evidence destruction. Cf. Thornton v. United States, 541 U.S. 615, 620622 (2004); Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 623 (1989); Schmerber v. California, 384 U.S. 757, 770771 (1966). And, as far as the record reveals, the officers might easily have secured the premises and sought a warrant permitting them to enter. See Illinois v. McArthur, 531 U.S. 326 (2001). Thus, the "totality of the circumstances" present here do not suffice to justify abandoning the Fourth Amendment's traditional hostility to police entry into a home without a warrant. I stress the totality of the circumstances, however, because, were the circumstances to change significantly, so should the result.

Chief Justice Roberts feared the Court's ruling would limit the ability of police to combat domestic violence. Chief Justice Roberts also noted that the purpose of the Fourth Amendment was to protect individual privacy, but any person who shares a dwelling (or, as Chief Justice Roberts points out, a locker or a hard drive) with another person may anticipate that the other person sharing access to their belongings might turn them over to authorities. In short, to share a home with someone is to surrender privacy as to that person, who might then consent to an invasion of it. Roberts also asserted that the majority opinion was arbitrary, as previous case law had held an objecting resident who was being held in the police car, as opposed to in the house, could be ignored with respect to the search.

Justice Antonin Scalia wrote a short dissent as a response to Justice Stevens's concurrence:

The issue of who could give such consent generally depended, in turn, on historical and legal refinements of property law. As property law developed, individuals who previously could not authorize a search might become able to do so, and those who once could grant such consent might no longer have that power . . . There is nothing new or surprising in the proposition that our unchanging Constitution refers to other bodies of law that might themselves change . . . Finally, I must express grave doubt that todays decision deserves Justice Stevens celebration as part of the forward march of womens equality. Given the usual patterns of domestic violence, how often can police be expected to encounter the situation in which a man urges them to enter the home while a woman simultaneously demands that they stay out?

In August 2006, a California trial court suppressed evidence after police acquired an absent residents permission to enter a dwelling, but failed to knock-and-announce before entering to discover another resident using drugs.[2] In Fernandez v. California (2014), the Supreme Court held that, when the resident who objects to the search of the dwelling is removed for objectively reasonable purposes (such as lawful arrest), the remaining resident may validly consent to search.

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Enlarge / Supreme Court nominee Judge Brett Kavanaugh testifies before the Senate Judiciary Committee on the third day of his Supreme Court confirmation hearing on Capitol Hill September 6, 2018 in Washington, DC.

On Thursday, during the second-to-last day of hearings before the Senate Judiciary Committee, Sen. Patrick Leahy (D-Vt.) had an interesting exchange over recent privacy cases with the Supreme Court judicial nominee, Judge Brett Kavanaugh.

"I've talked repeatedly in this hearing about how technology will be one of the huge issues with the Fourth Amendment going forward," said Kavanaugh, who serves on theUnited States Court of Appeals for the District of Columbia Circuit.

Opening their six-minute tte--tte, Leahy began by asking the appellate court judge about what Kavanaugh wrote in November 2015 in a case known as Klayman v. Obama. In that case, a well-known conservative activist attorney, Larry Klayman, sued the then-president on June 7, 2013the day after the Snowden revelations became public. The complaint argued that the National Security Agency's telephone metadata program ("Section 215"), which gathered records of all incoming and outgoing calls for years on end, was unconstitutional.

US District Judge Richard Leon ruled in favor of plaintiff and attorney Larry Klayman in December 2013 and ordered that the NSA's program be immediately halted. But he stayed his order pending the government appeal, which reversed Judge Leon in August 2015.

Klayman asked the appeals court to re-hear the case with all of the District of Columbia appellate judges, in whats known as an en banc appeal. This was denied, and Kavanaugh separately agreed with that decision in a November 2015 concurrence.

"I do so because, in my view, the Government's metadata collection program is entirely consistent with the Fourth Amendment," Kavanaugh wrote. "Therefore, plaintiffs cannot show a likelihood of success on the merits of their claim, and this Court was right to stay the District Court's injunction against the Governments program. The Governments collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court's decision in Smith v. Maryland, 442 U.S. 735 (1979). That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis."

Kavanaugh went further, saying that even if the Section 215 metadata program was a search, it should be considered "reasonable" in the name of national security.

"The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient 'special need'that is, a need beyond the normal need for law enforcementthat outweighs the intrusion on individual liberty," he wrote. "Examples include drug testing of students, roadblocks to detect drunk drivers, border checkpoints, and security screening at airports."

So Sen. Leahy wanted to know why Kavanaugh went out of his way to say this months after Leahy himself had authored a revision in the law, known as the USA Freedom Act, and when two government watchdogs had called for Section 215 to end. (An outside analysis also found in January 2014 that Section 215 was ineffective.)

"I was trying to articulate what I thought based on precedent at the time, when your information went to a third party and when the government went to a third party, the existing privacy Supreme Court precedent was that your privacy interest was essentially zero," Kavanaugh said Thursday. "The opinion by Chief Justice Roberts this past spring in the Carpenter case is a game changer."

Carpenter v. United States involved a suspect, Timothy Carpenter, who was accused of leading an armed robbery gang that hit Radio Shack and other cell phone stores in Michigan and Ohio in 2010 and 2011. The government was able to warrantlessly obtain 127 days' worth of his CSLI from his mobile provider, which detailed precisely where Carpenter had been during that time. The Supreme Court ultimately ruled earlier this year that, when the government seeks to obtain such a large volume of intimate information, it needs to get a warrant first in most cases.

The impact of Carpenter is starting to be felt in cases around the country.

"Do you think if Carpenter had been decided you would have written the concurrence you did in Klayman?" Leahy asked.

"I don't see how I could have," Kavanaugh said.

"Thank you, I agree with that," the Vermont senator replied.

Sen. Leahy then moved on to a 2012 Supreme Court case, United States v. Jones, which in retrospect has become one of a string of three major pro-privacy decisions that the high court has made within the last decade.

That case began in federal court in Washington, DC, and moved on to the appellate court on which Kavanaugh now sits, the United States Court of Appeals for the District of Columbia Circuit.

Before the Supreme Court agreed to hear Jones, the government, which lost at the appellate level, asked the DC Circuit to reconsider en banc. It declined to do so, but Kavanaugh wrote a dissent in November 2010 even though he was not on the original panel of three appellate judges.

Kavanaugh and three other Circuit judges wrote that Jones, which involved the warrantless placement of a GPS tracker on a suspected drug dealer's car, was very similar to a 1983 decision known as United States v. Knotts.

In that case, the Supreme Court found that there was no "reasonable expectation of privacy" when traveling on a public road. Therefore, a majority concluded, it was OK for the police to put a short-range FM transmitter on a drug suspect's car as it drove 100 miles from Minnesota to Wisconsin.

"The reasonable expectation of privacy as to a person's movements on the highway is, as concluded in Knotts, zero," Kavanaugh wrote in 2010. "The sum of an infinite number of zero-value parts is also zero."

Quoting from this very line during the Friday hearing, Leahy compared Kavanaugh's analysis to a statement as being closer to "the Chinese government than what we'd get from James Madison, had he known about what we can do."

Then, he brought his question home to the present day: "So, because of Carpenter, do you believe there comes a point at which collection of data about a person becomes so pervasive that a warrant would be required even if one collection of one bit of the data would not?"

While he didn't come right out and say it, Leahy seemed to be probing whether Kavanaugh ascribes to what many legal scholars call the "mosaic theory." This is the notion that, while a series of discrete surveillance or near-surveillance actions in and of themselves may be legal, there comes a point when those are aggregated over a long enough period of time that they become an unreasonable search in violation of the Fourth Amendment.

Both men undoubtedly knew that the DC appeals court ultimately ruled in favor of the mosaic theory in August 2010 when it handed an intermediate win to Antoine Jones and his co-defendant, Lawrence Maynard.

Kavanaugh reminded the hearing that, in this same dissent, he pointed out that there was a Fourth Amendment violation in the physical attachment of the GPS on Jones' Jeep Grand Cherokee. (This line of reasoning was what was ultimately seized upon by Justice Antonin Scalia and the conservative wing of the Supreme Court.)

But when Kavanaugh addressed whether or not he agreed with the mosaic theory, he was measured in his answer. Kavanaugh seemed to suggest that he disagreed with his DC appeals court colleagues on this point.

"I think the Supreme Court case law in the Riley case, written by Chief Justice Roberts, and the Carpenter case, written by Chief Justice Robertsboth majority opinionsshow his and the court's recognition of the issue that you're describing in that technology," Kavanaugh said.

"It's made things different, and we need to understand those differences for purposes of applying Fourth Amendment law now, and I do think those two decisions are quite important. Someone sitting in this chair 10 years from nowthe question of technology on Fourth Amendment, First Amendment, [and] War Powers [are] going to be of central importance. I appreciate your question, but I think the Supreme Court case law is developing in a way consistent with your concern."

"Do you think it's consistent with the fact that there will be areas so pervasive that you will need warrants?" Leahy asked.

"The Supreme Court case law is certainly suggesting as much in the Riley and Carpenter case and the Jones GPS case, which I had written the opinion in."

In short, Kavanaugh, in deferring to the government, seemed to acknowledge that he may be in the minority on this point.

The Senate Judiciary Committee is expected to vote on his nomination on September 17, with a full floor vote set to come at the end of the month. With no substantive objection from the Republican majority, Kavanaugh is all but set to be confirmed, in which case he will replace retired Justice Anthony Kennedy, for whom he clerked.

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NSA metadata program consistent with Fourth Amendment ...

'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.'

To pass muster under the Fourth Amendment, detention must be 'reasonable. ' See U.S. v. Montoya de Hernandez, 473 U.S. 531, 542-44 ('85) (analyzing constitutionality of length of traveler's border detention under Fourth Amendment reasonableness standard); Caban, 728 F.2d at 75 (considering whether duration of border detention without a hearing was reasonable).

In the context of a criminal arrest, a detention of longer than 48 hours without a probable cause determination violates the Fourth Amendment as a matter of law in the absence of a demonstrated emergency or other extraordinary circumstance. See County of Riverside v. McLaughlin, 111 S.Ct. 1661, 670 ('91). However, the Supreme Court arrived at this rule by considering the time it takes to complete administrative steps typically incident to arrest. See id.

Unreasonable Searches And Seizures.

Non-consensual extraction of blood implicates Fourth Amendment privacy rights. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 16 ('89) ('this physical intrusion, penetrating beneath the skin, infringes [a reasonable] expectation of privacy'); Schmerber v. California, 384 U.S. 757, 67 ('66) (compulsory blood test 'plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment').' '[f]or the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable.' Skinner, 489 U.S. at 619; accord Vernonia School Dist. 47J v. Acton, No. 95-590, 1995 WL 373274, at *3 (June 26,'95) ('the ultimate measure of the constitutionality of a governmental search is `reasonableness''). A search's reasonableness under the Fourth Amendment generally depends on whether the search was made pursuant to a warrant issued upon probable cause. U.S. v. Place, 462 U.S. 696, 701 ('83).

Even in the law enforcement context, the State may interfere with an individual's Fourth Amendment interests with less than probable cause and without a warrant if the intrusion is only minimal and is justified by law enforcement purposes. E.g., Michigan State Police Dept v. Sitz, 496 U.S. 444, 450 ('90); Terry v. Ohio, 392 U.S. 1, 20 ('68).

The gathering of fingerprint evidence from 'free persons' constitutes a sufficiently significant interference with individual expectations of privacy that law enforcement officials are required to demonstrate that they have probable cause, or at least an articulable suspicion, to believe that the person committed a criminal offense and that the fingerprinting will establish or negate the person's connection to the offense. See Hayes v. Florida, 470 U.S. 811, 813-18 ('85); Davis v. Mississippi, 394 U.S. 721, 726-28 ('69).

Nevertheless, everyday 'booking' procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether investigation of the crime involves fingerprint evidence. See Smith v. U.S., 324 F.2d 879, 882 (D.C. Cir.'63) (Burger, J.) ('it is elementary that a person in lawful custody may be required to submit to . . . fingerprinting . . . as part of the routine identification processes'); Napolitano v. U.S., 340 F.2d 313, 314 (1st Cir.'65) ('Taking fingerprints [prior to bail] is universally standard procedure, and no violation of constitutional rights.'). Thus, in the fingerprinting context, there exists a constitutionally significant distinction between the gathering of fingerprints from free persons to determine their guilt of an unsolved criminal offense and the gathering of fingerprints for identification purposes from persons within the lawful custody of the state.

Although the drawing of blood from free persons generally requires a warrant supported by probable cause to believe that a person has committed a criminal offense and that his blood will reveal evidence relevant to that offense, see Schmerber, 384 U.S. at 768-71; U.S. v. Chapel, ___ F.3d ___, slip op. at 5753-54 (9th Cir.'95) (en banc), the absence of such a warrant does not a fortiori establish a violation of the plaintiffs' Fourth Amendment rights.

The Supreme Court has noted repeatedly that the drawing of blood constitutes only a minimally intrusive search. Skinner, 489 U.S. at 625 (blood tests do not 'infringe significant privacy interests'); Winston v. Lee, 470 U.S. 753, 62 ('85) (not 'an unduly extensive imposition'); Schmerber, 384 U.S. at 771 ('commonplace'); Breithaupt v. Abram, 352 U.S. 432, 36 ('57) ('routine' and 'would not be considered offensive by even the most delicate').

'An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents.' Skinner, 489 U.S. at 421-2 (holding that a warrant was not required in part because 'in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate'). The Supreme Court recently reaffirmed and expanded the principle first enunciated in Skinner, stating that, in some contexts, 'testing based on `suspicion' of [wrongful activity] would not be better, but worse' than suspicionless testing. Acton, 1995 WL 373274, at *8. In Acton, the Supreme Court upheld as constitutional a school district's practice of conducting random, suspicionless urine testing of school athletes for drug use. The Court rejected the proposition that the school district could conduct such testing only if school officials had suspicion that a specific athlete was using drugs, holding that this alternative 'entails substantial difficulties -- if it is indeed practicable at all.' Id. Accusatory drug testing would 'transform[] the process into a badge of shame' and would increase the risk that school officials would impose testing arbitrarily upon disfavored, but not drug-using, students. Id.

Except in certain narrowly limited cases, the Court repeatedly has stated its 'insist[ence] upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.' Chambers v. Moreny, 399 U.S. 42, 51 ('70). Because '[t]he integrity of an individual's person is a cherished value in our society,' searches that invade bodily integrity cannot be executed as mere fishing expeditions to acquire useful evidence: 'The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.' Schmerber, 384 U.S. at 772, 769-70.

Only when law enforcement faces an exigent circumstance, such as a need to preserve evanescent blood alcohol evidence, and has probable cause to link the sought-after information to a crime under investigation is it constitutional to conduct nonconsensual blood testing without a warrant. Id. at 770-71. Therefore, forced extraction of blood not only 'implicates the Fourth Amendment,' as the majority notes, but also falls squarely within the area of privacy interests for which the traditional probable cause requirement determines reasonableness in the law enforcement context. Forced blood extraction intrudes on the private personal sphere and infringes upon an individual's 'most personal and deep-rooted expectations of privacy.' Winston v. Lee, 470 U.S. 753, 60 ('85).

Searches Involving Intrusions Beyond The Body's Surface.

Schmerber v. California, 384 U.S. 757, 69 ('66). The Schmerber Court posed two questions: (1) whether the police were justified in imposing a nonconsensual blood test and (2) whether the procedures themselves were reasonable. Id. at 768. In answering the first question, the Court recognized that it was 'writ[ing] on a clean slate' regarding the treatment of searches that involve intrusions into the human body. Id. at 767-8. It concluded that such searches require probable cause. Id. at 770-1.

Similarly, the Supreme Court in Winston v. Lee, 470 U.S. 753 ('85), recognized that Schmerber's threshold standard was a requirement of probable cause 'where intrusions into the human body are concerned,' which implicate 'deep-rooted expectations of privacy.' Id. at 761, 760. The Winston Court then acknowledged `other factors'' [b]eyond these standards' that must be considered in determining whether a particular intrusion is reasonable: whether 'the procedure threatens the safety or health of the individual' and 'the extent of the intrusion upon the individual's dignitary interests.' Id. at 761 (emphasis added). In regard to the additional 'dignitary' factor (beyond the threshold inquiry of invasion of bodily integrity), the Winston Court noted Schmerber's recognition that blood extraction is not 'an unduly extensive imposition.' Id. at 762. The Court contrasted this lesser bodily invasion, which the Schmerber Court had upheld upon demonstration of probable cause, with the more drastic measure of dangerous surgery to recoup criminal evidence, which the Winston Court concluded would violate the individual's Fourth Amendment rights even when supported by probable cause. Thus again, the context of the quotation demonstrates that the Court places blood extraction squarely within the probable cause requirement because it is an invasion of bodily integrity, while at the same time acknowledging that it is a less extensive imposition on dignitary interests than surgical removal of a bullet.

Investigatory Stops Of Motorists At Sobriety Checkpoints.

The unique situation in which the Supreme Court has approved suspicionless searches in the traditional law enforcement context. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444 ('90). The Sitz Court relied on well-settled law that motorists have a lessened expectation of privacy regarding stops and visual searches of automobiles on the nation's roadways. Id. at 450 (explaining the importance of the context of 'police stops of motorists on public highways'). At these sobriety checkpoints, which motorists may choose to avoid, only the initial brief stop and preliminary questioning may take place without individualized suspicion: 'more extensive field sobriety testing' requires justification. Id. at 450-2.

Like the highway sobriety checkpoints, the 'special needs beyond normal law enforcement' rationale supports searches on lesser grounds than probable cause only in a very few, carefully tailored regulatory contexts that do not involve apprehension of criminal perpetrators. See, e.g., National Treasury Employees Union v. Von Raab, 489 U.S. 656, 65-66 ('89) (applying the special needs exception to suspicionless quasi-consensual drug testing of Customs Service employees seeking transfer to positions having a direct involvement in drug interdiction).

The special needs exception covers testing which 'is not designed to serve the ordinary needs of law enforcement [because] . . . results may not be used in criminal prosecution.' Von Raab, 489 U.S. at 666 (emphases added). Even so, a search in the special needs context almost always requires individualized suspicion. See, e.g., Portillo v. U.S. Dist. Court, 15 F.3d 819, 823 (9th Cir.'94) (requiring individualized suspicion for urinalysis testing under the probationer special needs exception). The rare special needs cases which do not require individualized suspicion involve persons who voluntarily participate in a highly regulated context. See, e.g., Von Raab, at 671, 677 (noting that 'certain forms of employment may diminish privacy expectations' for the 'employees who seek to be promoted' to certain positions); Vernonia School Dist. v. Acton, 1995 WL 373274, *6-*7 (U.S. June 26, '95) (noting that schools are highly regulated and 'like adults who choose to participate in a `closely regulated industry,' students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy').

Nonetheless, routine searches that intrude into prisoners' bodies without probable cause may be upheld only when the search is undertaken pursuant to a valid prison regulation that is reasonably related to a legitimate penological objective. Turner v. Safley, 482 U.S. 78, 87-91 ('87); see, e.g., Walker v. Sumner, 917 F.2d 382, 387 (9th Cir.'90) (remanding for evidence of a specific penological objective because 'general protestations of concern for the welfare of the citizens of Nevada and the prison community are simply insufficient to render the involuntary seizure of blood specimens, even from prison inmates, constitutionally reasonable').

Individuals have a categorically different and lesser expectation of privacy in their fingerprints, visual images, or voice prints

- even when their production is compelled -- because they are personal attributes that are routinely exposed to the public at large in daily life. Katz v. U.S., 389 U.S. 347, 51 ('67) (finding a lesser expectation of privacy in personal effects that 'a person knowingly exposes to the public, even in his own home or office').

The Fourth Amendment provides no protection for what 'a person knowingly exposes to the public'. Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.

The required disclosure of a person's voice is thus immeasurably further removed from the Fourth Amendment protection than was the intrusion into the body effected by the blood extraction in Schmerber . . . . Rather, this is like the fingerprinting in Davis, . . . [which] 'involves none of the probing into an individual's private life and thoughts that marks an interrogation or search.' U.S. v. Dionisio, 410 U.S. 1, 14-15 ('73) (quoting Katz v. U.S., 389 U.S. 347, 51 ('67), and Davis v. Mississippi, 394 U.S. 721, 27 ('69)) (emphases added).

'Fingerprinting' - like the compelled production of other aspects of an individual's identification that are routinely exposed to and superficially observable by the public at large, such as voice prints, handwriting exemplars, and photographs - simply belongs to a different category of search that 'represents a much less serious intrusion upon personal security than other types of searches and detentions.' Hayes v. Florida, 470 U.S. 811, 14 ('85).*fn10 The majority's analysis obliterates this critical constitutional distinction between coerced fingerprinting and blood extraction for DNA genetic pattern analysis.

Blanket Searches.

Blanket searches are unreasonable, however 'evenhanded' they may be, in the traditional criminal law enforcement context. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91-2, 92 n.4 ('79) (invalidating a blanket patdown search of all patrons in a tavern, even though there was probable cause to search the bartender and the premises). The ill that the Fourth Amendment prevents is not merely the arbitrariness of police discretion to single out individuals for attention, but also the unwarranted domination and control of the citizenry through fear of baseless but 'evenhanded' general police searches.

In Zurcher, the Supreme Court held that a search of the offices of a university newspaper, which was not involved in any criminal activity, for photographs of demonstrators who had assaulted police officers did not offend the Fourth Amendment's ban against unreasonable searches and seizures. The court concluded: '[T]he Amendment has not been a barrier to warrants to search property on which there is probable cause to believe that fruits, instrumentalities, or evidence of crime is located, whether or not the owner or possessor of the premises to be searched is himself reasonably suspected of complicity in the crime being investigated.' Zurcher v. Stanford Daily ('78) 436 U.S. 547, 549-50.

Fourth Amendment protects the 'right of the people to be secure in their persons . . . against unreasonable searches and seizures.' The essence of that protection is a prohibition against some modes of law enforcement because the cost of police intrusion into personal liberty is too high, even though the intrusion undoubtedly would result in an enormous boon to the public if the efficient apprehension of criminals were the sole criterion to be considered. 'The easiest course for [law enforcement] officials is not always one that our Constitution allows them to take.' Wolfish, 441 U.S. at 595 (Stevens, dissenting).

A permanent resident alien is entitled to constitutional protection. See Landon v. Plasencia, 459 U.S. 21, 32-4 ('82) ('[O]nce an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.'). In particular, to Fourth Amendment protection against unlawful seizures. See Benitez-Mendez v. INS, 760 F.2d 907, 09-10 (9th Cir.'85) (finding that INS seizure of alien violated Fourth Amendment); see also INS v. Delgado, 466 U.S. 210, 213 n.1, 215-21 ('84) (considering whether questioning of resident aliens by INS agents amounted to seizure for purposes of Fourth Amendment); Martinez v. Nygaard, 831 F.2d 822, 824, 826-28 (9th Cir.'87) (analyzing whether seizures of three resident aliens complied with Fourth Amendment).

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Fourth Amendment Defined & Explained