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SAN FRANCISCO (AP) Law enforcement must provide a valid reason to hold peoples vehicles and cannot automatically impound them for a set period, a federal appeals court said Wednesday.

The unanimous ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals struck down a California law that requires police to hold impounded vehicles for 30 days.

Judge Alex Kozinski, writing for the panel, said the law violates the Fourth Amendment prohibition against unreasonable seizures.

A seizure is justified under the Fourth Amendment only to the extent that the governments justification holds force, he said. Thereafter, the government must cease the seizure or secure a new justification.

The decision revived a lawsuit against Los Angeles by a woman whose car was held by police for 30 days. The Los Angeles City Attorneys Office did not immediately have comment.

Lamya Brewster loaned her vehicle to Yonnie Percy, her brother-in-law, according to the 9th Circuit ruling. Los Angeles police stopped Percy and seized the vehicle when they learned Percy had a suspended drivers license.

The 9th Circuit said there was agreement that the initial seizure did not pose any problems under an exception to the Fourth Amendment that allows police to impound vehicles that jeopardize public safety.

But the court said police provided no new justification to continue holding the vehicle after Brewster showed up with proof of ownership and a valid drivers license three days later.

A lower court had thrown Percys lawsuit out, finding that the 30-day impoundment period was aimed at deterring unlicensed drivers or drivers with suspended licenses from driving and was a lawful penalty.

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Appeals Court Strikes Down California's 30-Day Impound Law - FOX40

A legal organization that advocates for constitutional freedom is watching a 4th Amendment case currently being reviewed by the U.S. Supreme Court.

The case is Carpenter v. The United States, which reached the court from the 6th U.S. Court of Appeals.

The case involves a gang of armed robbers who were tracked by authorities after one of the robbers confessed to the crime and gave up his cell phone number and the numbers of his accomplices.Using cell phone data, authorities analyzed the usage history to trace their movements for 127 days, a Washington Post story explained.

Curt Levey of the Committee for Justice says long before cell phones came into being, court rulings would suggest the police can monitor phone movements. That doesn't apply now, he insists.

I think that would be a very bad interpretation when applied to today's technology, says Levey, because the government might as well put a GPS device on your car and the Supreme Court has said the government can't do that without a warrant.

In the Washington Post story, criminal law professor Orin Kerr summarized the two questions presented to the high court:

I gather, then, that the case will consider two distinct questions. First, is the collection of the records a Fourth Amendment search? And second, if it is a search, is it a search that requires a warrant?

The government argues cell phone owners opt in to third-party police access when they sign a contract with the company. Most of the data came from provider MetroPCS while some "roaming" data came from Sprint.

But Levey doesn't agree.

You're really not consenting to anything when you use it, he says, and to say that by using a cell phone you have to give up all your Fourth Amendment rights, it would result in a government too powerful and too intrusive for my taste, and I think the taste of most Americans.

In taking up the case, he adds, the Supreme Court can update old rulings based on modern technology and determine whether police can have access to the information without a warrant or not.

Kerr described the SCOTUS review as a "momentous development" because the future of surveillance law hinges on the coming ruling.

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SCOTUS reviews 4th Amendment vs. surveillance case - OneNewsNow

In Carpenter v. United States, the Supreme Court will decide whether a warrant is required for the government to obtain historical cell-site records from a customers account. This post asks a question for those who think the answer should be yes: How do you deal with the Fourth Amendment rights of the cellphone providers? Im not sure what the answer should be, but I think its an important question to help understand the issues and stakes in Carpenter.

This is a complex issue, so Im going to break it down into three steps. Ill start with an overview of the third-party doctrine. Ill then turn to third-party rights under current law. Ill next consider different ways the third-party rights might work if the Supreme Court holds that a warrant is required.

I. Overview of the Third-Party Doctrine

Lower courts have held, consistently with U.S. Supreme Court precedent, that historical cell-site records are not protected under the Fourth Amendment. They have mostly based this holding on the third-party doctrine, the rule that you dont maintain Fourth Amendment rights in information that you voluntarily disclose to a third party.

As I explained in this article, the third-party doctrine was originally intended to be the subjective expectation of privacy test in Justice Harlans Katz concurrence. The idea was that you can only have privacy in what you try to hide from others: You need to manifest your subjective expectation of privacy to have Fourth Amendment rights, shielding it from observation, so that you cant have such rights in what you knowingly disclose to others. As my article explains, this rule has been around for a very long time, but it accidentally moved over time from the subjective expectation test into the objective expectation of privacy test in the 1970s and 1980s.

The third-party doctrine has had very wide application. If a criminal confesses to his friend about his crimes, the government can get the information from the friend without implicating the criminals Fourth Amendment rights. If a person commits an offense in front of an eyewitness, the government can get the information from the eyewitness without implicating the criminals Fourth Amendment rights. If a person goes to the bank and deposits a check, the government can get the information from the bank without implicating his Fourth Amendment rights. And if a person dials a number to place a phone call, the government can get the numbers dialed from the phone company without implicating his Fourth Amendment rights.

II. What About the Constitutional Rights of the Third Party?

A key implication of the third-party doctrine is that the government only has to deal with the constitutional rights of the person or business that received and now possesses the information. Upon the informations receipt, the thinking goes, the sender of the information no longer has Fourth Amendment rights in it. Only the rights of the recipient/holder of the information matter.

That raises the question of to what extent the constitutional rights of the holder of the information can limit law enforcement. The answer is: some, although not much. First, the Supreme Court has held that there are no Fourth Amendment limits to the government compelling a person to testify about what they know and what they saw. That raises Fifth Amendment issues if the person who would testify may be thought to be involved in criminal activity, but the compelled testimony is not a search or seizure under the Fourth Amendment. See United States v. Dionisio, 410 U.S. 1 (1973).

Second, if the government compels a person or company to hand over stored records as opposed to live testimony, the Fourth Amendment applies to the records but the constitutional limit is only unreasonable burdensomeness. There is no warrant or probable cause requirement. See, e.g., Hale v. Henkel, 201 U.S. 43 (1906); In re Horowitz, 482 F.2d 72 (2d Cir. 1973) (Friendly, J.). To be sure, the Fourth Amendment still applies fully to direct entry. The government ordinarily needs a warrant to break into a business and seize records just like it needs a warrant to break into a home. But its a different situation when the government is compelling assistance rather than searching directly.

These same Fourth Amendment rules apply when the government is seeking information that a business happens to hold about its customers. Whether the target of the investigation is the business or its customers doesnt matter under the Fourth Amendment. This means that if the government is seeking a companys assistance to disclose records about the businesss customers, the information is protected under the Fourth Amendment in the abstract because the business has its own Fourth Amendment rights. At the same time, the third-party business generally can be required to keep and disclose the records under a fairly low burden. See, e.g., California Bankers Association v. Shultz, 416 U.S. 21 (1974); Couch v. United States, 409 U.S. 322 (1973); Donaldson v. United States, 400 U. S. 517 (1971). And because the information or records ordinarily could not incriminate the third party in criminal activity, the third party business cannot assert a Fifth Amendment privilege against production. See Fisher v. United States, 425 U.S. 391 (1976).

The idea that a business has only modest Fourth Amendment rights to fight compelled disclosure of customer records isnt new. It has been around a long time. For example, in First National Bank v. United States, 267 U.S. 576 (1925), the IRS wanted to see if a couple had underreported their income on their federal income tax forms. The IRS issued a summons to the couples bank requiring the bank to produce their books showing the couples banking account records. The idea was that the bank statements would reveal whether the couple had falsely reported their income. The bank refused to comply under the Fourth Amendment on the ground that producing the records was an unreasonable search or seizure and that the bank wanted to keep its customers account records private.

The district court rejected the banks claim. This is not a question of a search and seizure of a partys books and papers, the court wrote, but of whether a witness who has information as to a partys dealings may be required to testify to those facts, and produce book entries as to such entries in connection with and supporting such testimony. It would be monstrous, the court rather dramatically added, for the government not to be able to determine the proper taxes that a person owed simply because the bank desires to protect the dealings of its customers from unauthorized investigation. The Supreme Court then affirmed the district court in a one-sentence per curiam opinion upon the authority of the courts precedents about subpoenas for business records (including Hale v. Henkel, cited above).

III. Applying the Traditional Approach to Historical Cell-Site Records

Applying this traditional body of law to historical cell-site records is pretty straightforward, I think. The cellphone company generates and stores business records of what cell towers were used to connect a customers calls. Those records are like the banks records in First National Bank. The cellphone provider is ordered to be a witness who has information as to a partys dealings [and] may be required to testify to those facts, and produce book entries as to such entries in connection with and supporting such testimony.

Granted, Congress requires an intermediate facts court order under the Stored Communications Act for the government to compel those records. A mere subpoena, which would be sufficient under the Fourth Amendment, isnt enough under the statute. But if the lesser process of a subpoena is sufficient to satisfy the rights of the company, presumably the greater process of an intermediate facts court order is as well (although that hasnt been challenged), And under the third-party doctrine, access to the account records wouldnt implicate any Fourth Amendment rights of the user.

If youll pardon a brief digression, its not even clear you need the third-party doctrine to say that the records dont implicate the users Fourth Amendment rights. The third-party doctrine is traditionally about the disclosure of private information that a suspect has revealed. The idea is that the suspect has private information, chose to reveal that information (often in confidence) to someone, and then the government sought that private information from that person. The cell-site business records in Carpenter are arguably one step removed from that. They are business records of how a private company decided to direct calls to and from the user. The records are about what a private company did for a user, not necessarily what a user chose to disclose in confidence to the company.

But at the very least, the third-party doctrine seems to fit the Carpenter case under traditional caselaw principles. So the old answer would be no Fourth Amendment rights for the customer, although statutory rights provided by Congress, and only modest Fourth Amendment rights for the cellphone provider.

IV. If the Third-Party Doctrine is Rejected, How Should Courts Deal With Third-Party Rights?

Thats the old law, at least. Now lets consider how the Fourth Amendment would work if the Supreme Court rejects that traditional approach. Lets assume the Supreme Court agrees with the defendant on both issues in Carpenter: First it holds that users have Fourth Amendment rights in cell-site records, and second it holds that the records are protected by a warrant protection.

Now we get to my question: Assuming the Supreme Court makes these two holdings, how would this work with respect to the providers rights? The government does not seek cell-site records by breaking into the providers business and rummaging around its offices and computers. That would ordinarily require a warrant even under the traditional law of the third-party doctrine. The records are already protected under the Fourth Amendment as held by the company, after all, and ordinarily the government would need a warrant to break into the company headquarters and seize them because of the companys Fourth Amendment rights.

The tricky problem, I think, is what to do with the providers rights once the user also has rights in the records. Assume, for now, that the company does not want to comply with the governments legal process. If the records were about the provider, a subpoena would be enough for the government to force the company to disclose them.

Heres what Im stuck on: How do you reconcile the conflict between that rule and a warrant requirement if the Fourth Amendment rights belong to the user? Is the idea that a company served with a subpoena for business records has to figure out if the subpoena implicates only its own Fourth Amendment rights (in which case the subpoena complies with the Fourth Amendment so long as it is not overbroad) or if it also implicates a users Fourth Amendment rights (in which case the subpoena is insufficient and a warrant is required?). If the government issues a subpoena for business records and it turns out that a customer also had rights in the data, would we say that compelled compliance with the subpoena violated the rights of the user but not the company?

Alternatively, if it doesnt make sense for every subpoena and sub-warrant court order to require a standing analysis before knowing if compliance is legal, which rule do you apply to both situations if a single rule has to be chosen? Do you say that both situations require a warrant, such that all subpoenas issued to businesses now require probable cause and warrant particularity (effectively eliminating the use of business record subpoenas for investigations)? Or do you say that neither situation requires a warrant, such that the user has Fourth Amendment rights in cell-site records but that a valid subpoena is enough to overcome the Fourth Amendment rights just as it it would for ordinary business records?

Next assume that the cellphone company wants to cooperate. If both the user and the company have Fourth Amendment rights in the records, then I imagine the common authority doctrine would apply. Under the common authority doctrine, if there is mutual use of the property by persons generally having joint access or control for most purposes, they both can consent to a search. See United States v. Matlock, 415 U.S. 164 (1974). Cellphone customers may not have joint access and control over cell site records: They dont know what the records say and have no ordinary means of accessing them. But if they nonetheless have Fourth Amendment rights in the records, I would think that at least the company has common authority over the records allowing them to legally consent to law enforcement access to the records.

If thats right, though, how does it work if the phone company is willing to help the government? Imagine Carpenter holds that users have Fourth Amendment rights in cell-site records, and that a warrant is ordinarily required. Can a provider tell the government that as long as the government has a 2703(d) court order, as required by the statute, that it will voluntarily consent to hand over the records under the common authority doctrine? If so, whether there is really a warrant requirement would depend on what the company wants to do: Because both the user and the company have common authority over the companys business record, the company could consent and eliminate the right.

You could try to avoid this by saying that the cellphone providers lack common authority over their own business records. But that seems like a hard result to justify. The companies created and used the records and keep them. It seems hard to say that they lack access to or control over the records that they created and keep for their own use.

Granted, caselaw would suggest that companies lack common authority to consent to a government search of the contents of communications, such as emails. In physical space, the landlord of an apartment or the hotel employee at the hotel lacks common authority to consent. See Chapman v. United States, 365 U.S. 610 (1961) (landlord); Stoner v. California, 376 U.S. 483 (1964) (hotel employee). By analogy, I would think that an email provider couldnt ordinarily consent to a search of the contents of a users emails, at least barring some unusual terms of service. But with cell-site records, I would think that the phone companies have at least common authority (if not exclusive authority) over the records of how their network connected calls.

V. Let Me Know Your Thoughts

For the seven readers that have made it this far, let me know your thoughts! There may be good answers to these questions. But it seems like largely uncharted territory, and Im not sure yet what those good answers are.

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Third party rights and the Carpenter cell-site case - Washington Post

More than 325,000 people enter the United States via airports every day, with hundreds of thousands more crossing by land at the borders. Not only is that a lot of people, its also a lot of computers, smartphones, and tablets riding along in our pockets, bags, and trunks. Unfortunately, the Fourth Amendment protections we enjoy inside the U.S. for our devices arent always as strong when were crossing bordersand the Department of Homeland Security takes advantage of it. On the other hand, the border is not a Constitution-free zone. What are the limits to how and how much customs and immigrations officials can access our data? To help answer those questions, were offering the second in our series of posts on the Constitution at the border, focusing this time on the Fourth Amendment. Click here for Part 1 on the First Amendment or for Part 3 on the Fifth Amendment.

The Fourth Amendment forbids unreasonable searches and seizures by the government. In most circumstances, the Fourth Amendment requires that government agents obtain a warrant from a judge by presenting preliminary evidence establishing probable cause to believe that the thing to be searched or seized likely contains evidence of illegal activity before the officer is authorized to search.

Unfortunately, the Supreme Court has sanctioned a border search exception to the probable cause warrant requirement on the theory that the government has an interest in protecting the integrity of the border by enforcing the immigration and customs laws. As a result, routine searches at the border do not require a warrant or any individualized suspicion that the thing to be searched contains evidence of illegal activity.

But the border search exception is not without limits. As noted, this exception only applies to routine searches, such as those of luggage or bags presented at the border. Non-routine searches such as searches that are highly intrusive and impact the dignity and privacy interests of individuals, or are carried out in a particularly offensive manner must meet a higher standard: individualized reasonable suspicion. In a nutshell, that means border agents must have specific and articulable facts suggesting that a particular person may be involved in criminal activity. For example, the Supreme Court held that disassembling a gas tank is routine and so a warrantless and suspicionless search is permitted. However, border agents cannot detain a traveler until they have defecated to see if they are smuggling drugs in their digestive tract unless the agents have a reasonable suspicion that the traveler is a drug mule.

How does this general framework apply to digital devices and data at the border? Border agents argue that the border search exception applies to digital searches. We think they are wrong. Given that digital devices like smartphones and laptops contain highly personal information and provide access to even more private information stored in the cloud, the border search exception should not apply. As Chief Justice Roberts recognized in a 2014 case, Riley v. California:

Snooping into such privacies is extraordinarily intrusive, not routine. Thus, when the government asserted the so-called incident to arrest exception to justify searching a cell phone without a warrant during or immediately after an arrest, the Supreme Court called foul. Why is the Riley decision important at the border? For one thing, the incident to arrest exception that the government tried to invoke is directly comparable to the border search exception, because both are considered categorical exemptions. Given that the intrusion is identical in both instances, the same privacy protections should apply. Moreover, with the ubiquity of cloud computing, a digital device serves as a portal to highly sensitive data, where the privacy interests are even more significant. Following Riley, we believe that any border search of a digital device or data in the cloud is unlawful unless border agents first obtain a warrant by showing, to a judge, in advance, that they have probable cause to believe the device (or cloud account) likely contains evidence of illegal activity. However, lower courts havent quite caught up with Riley. For example, the Ninth Circuit held that border agents only need reasonable suspicion of illegal activity before they could conduct a non-routine forensic search of a travelers laptop, aided by sophisticated software. Even worse, the Ninth Circuit also held that a manual search of a digital device is routine and so a warrantless and suspicionless search is still reasonable under the Fourth Amendment. Some courts have been even less protective. Last year a court in the Eastern District of Michigan upheld a computer-aided border search of a travelers electronic devices that lasted several hours without reasonable suspicion. EFF is working hard to persuade courts (and border agents) to adopt the limits set forth in the Riley decision for border searches of cellphones and other digital devices. In the meantime, what should you do to protect your digital privacy? Much turns on your individual circumstances and personal risk assessment. The consequences for non-compliance with a command from a CBP agent to unlock a device will be different, for example, for a U.S. citizen versus a non-citizen. If you are a U.S. citizen, agents must let you enter the country eventually; they cannot detain you indefinitely. If you are a lawful permanent resident, agents might raise complicated questions about your continued status as a resident. If you are a foreign visitor, agents may deny you entry entirely. We recommend that everyone conduct their own threat model to determine what course of action to take at the border. Our in depth Border Search Whitepaper offers you a spectrum of tools and practices that you may choose to use to protect your personal data from government intrusion. For a more general outline of potential practices, see our pocket guides to Knowing Your Rights and Protecting Your Data at the Border.

Were also collecting stories of border search abuses at: borders@eff.org

And join EFF in calling for stronger Constitutional protection for your digital information by contacting Congress on this issue today.

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The Bill of Rights at the Border: Fourth Amendment Limits on ...

Orin Kerr at the Volokh Conspiracy has another twisted and complicated Fourth Amendment case for us to consider this week. It deals with United States v. Gorman and its yet another traffic stop challenge, but with several twists. This particular incident involved an officer stopping Straughn Gorman while he was driving his brothers motor home cross country to California. The officer believed that Gorman was carrying drugs and/or drug money in the RV but didnt have a drug sniffing dog with him and had no further grounds to search the vehicle so he let him go. The officer then called ahead to law enforcement in the next county and alerted them to Gormans approach and of his suspicions. A second officer (with a dog) intercepted Gorman and pulled him over on another very minor traffic violation. The dog detected drug residue and a warrant was issued, leading to a search which turned up $167,070 in cash, stuffed in white envelopes and sealed in plastic bags.

There were no criminal charges brought against Gorman, but the authorities did seize the money. The courts eventually found that the search was unsupportable and Gorman got his money back. This brings Kerr to ask the following question.

If an officer pulls over a car for a traffic violation and suspects the car has drugs, but he cant get the drug-sniffing dog to come in time to sniff it, can the officer end the traffic stop and call ahead to another police officer to get a dog and watch for the car to pull it over for a second violation? Specifically, if the second officer gets a dog and spots a second traffic violation, can the second officer pull over the car and use the drug-sniffing dog to get probable cause to search the car?

The bottom line to this lengthy discussion is that there are two conflicting elements to the decision, at least for my interest in the subject. One of them is the forfeiture of all that money and the efforts by the cops to keep it. From the sound of the police reports theres pretty much zero doubt that this guy was hauling drug money, but thats not the point here. The cops have to be able to prove their case before they should even be allowed to consider confiscating someones property. Since Gorman guilty or not in reality was never even charged its preposterous that they should keep his cash. That aspect of the challenge is easy enough for me.

But the stickier subject is the fact that the courts are once again summoning up the misbegotten fruit of the poisonous tree doctrine here. If you read the entire account of both officers in the full decision, even Ill admit that these traffic stops were dodgy at best. I have no clue what tipped off the first officer that there was money (as opposed to drugs) in the vehicle. But the fact is that something tipped him off. And it was later discovered that there absolutely was a large quantity of cash with drug residue on it. So why should the second officer be forbidden to act on that tip and have a dog sniff the vehicle? What if they had received an anonymous tip from somebody telling them the driver was trafficking drugs? Wouldnt that be suitable justification?

This fruit of the poisonous tree nonsense is completely out of hand. Theres a line to be drawn somewhere between ensuring the rights of citizens against unreasonable search or seizure and simply tying the hands of law enforcement to the point where they cant do their jobs when theres obviously a crime taking place. And cases such as this one cross that line by a fair margin.

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So now "coordinated traffic stops" are a Fourth Amendment ...