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Most cars manufactured in the past three years come with event data recorders, sometimes known as black boxes. These devices are computers that record and store crash data in the event of an accident. Under regulations adopted by the National Highway Traffic Safety Administration, the event data recorders must record 15 data inputs. They include engine rpm, steering, the length and severity of the crash, and the braking during the crash. The data on the devices are intentionally difficult to access. Doing so generally requires specialized equipment that a typical car owner wont have.

A new Florida state court decision, State v. Worsham, considers an interesting question: How does the Fourth Amendment apply to government efforts to retrieve data from event data recorders? Worsham was in a terrible accident, and his car was impounded. Twelve days later, the police downloaded the data from the event data recorder without obtaining a warrant. Worsham has been charged with drunken driving and vehicular homicide, and the police want to use the data from the event data recorder to show Worshams guilt.

The question is: Does the Fourth Amendment allow it?

The Florida court divides 2-1. According to the majority, accessing the data is a search that requires a warrant. Because the police accessed the data without a warrant, the evidence must be suppressed. From the majority opinion:

A cars black box is analogous to other electronic storage devices for which courts have recognized a reasonable expectation of privacy. Modern technology facilitates the storage of large quantities of information on small, portable devices. The emerging trend is to require a warrant to search these devices. See Riley v. California, 134 S. Ct. 2473 (2014) (requiring warrant to search cell phone seized incident to arrest); Smallwood, 113 So. 3d 724 (requiring warrant to search cell phone in search incident to arrest); State v. K.C., 207 So. 3d 951 (requiring warrant to search an abandoned but locked cell phone).

The majority offers several rationales for its decision, but this seems to be the main one:

Extracting and interpreting the information from a cars black box is not like putting a car on a lift and examining the brakes or tires. Because the recorded data is not exposed to the public, and because the stored data is so difficult to extract and interpret, we hold there is a reasonable expectation of privacy in that information, protected by the Fourth Amendment, which required law enforcement in the absence of exigent circumstances to obtain a warrant before extracting the information from an impounded vehicle.

Although electronic data recorders do not yet store the same quantity of information as a cell phone, nor is it of the same personal nature, the rationale for requiring a warrant to search a cell phone is informative in determining whether a warrant is necessary to search an immobilized vehicles data recorder. These recorders document more than what is voluntarily conveyed to the public and the information is inherently different from the tangible mechanical parts of a vehicle. Just as cell phones evolved to contain more and more personal information, as the electronic systems in cars have gotten more complex, the data recorders are able to record more information. The difficulty in extracting such information buttresses an expectation of privacy.

The dissent argues that people have no reasonable expectation of privacy in the data stored in event data recorders:

In contrast to a cellular phone, an EDR does not contain a broad array of private information such as photos, passwords, and other sensitive records previously found in the home. Riley v. California, 134 S. Ct. 2473, 2491 (2014). Significantly, the EDR in the instant case did not contain GPS information relative to the vehicles travels, which may be subject to privacy protection. See United States v. Jones, 565 U.S. 400, 415-17 (2012) (Sotomayor, J., concurring) (expressing concern with GPS information which reflects a wealth of detail about [a persons] familial, political, professional, religious, and sexual associations). As noted in the majority opinion, the EDR in this case was only recording speed and braking data, the cars change in velocity, steering input, yaw rate, angular rate, safety belt status, system voltage, and airbag warning lamp information. Moreover, this data had not been knowingly inputted by Appellee; in fact, it is likely that Appellee did not even know that the vehicle he was driving had an EDR. Therefore, it would be quite a stretch to conclude that Appellee sought to preserve this information as private.

More from the dissent:

The data that the government extracted from the vehicle that was owned and driven by Appellee in this case was not information for which Appellee or any other owner/driver had a reasonable expectation of privacy. The data was not personal to Appellee, was not password protected by Appellee, and was not being collected and maintained solely for the benefit of Appellee. The EDR was installed by the vehicles manufacturer at the behest of the National Highway Traffic Safety Administration and, as distinct from Jones, the purpose of the data collection is highway and driver safety. See New York v. Class, 475 U.S. 106, 113 (1986) ([A]utomobiles are justifiably the subject of pervasive regulation by the State [and e]very operator of a motor vehicle must expect the State, in enforcing its regulations, will intrude to some extent upon that operators privacy.).

Heres my tentative take: This is a pretty tricky question based on current Fourth Amendment caselaw. Applying that caselaw, I would think that accessing the event data recorder was likely a search. On the other hand, its not obvious to me that it requires a warrant.

Accessing the data was likely a search because it was accessing a closed container inside the persons property. Thats a classic kind of Fourth Amendment search. Whether the contents of the container were sensitive or personal, or how hard it was to access the container, doesnt strike me as relevant here. Because this was an access to a container, revealing information that was hidden from view, what I would call the private facts model doesnt apply under Arizona v. Hicks.

Theres a counterargument that this shouldnt be a search under United States v. Knotts, the beeper case. But the event data recorder stores all sorts of data that were not exposed to public observation, so I would tend to think Knotts doesnt apply. Theres also a counterargument that this is like reaching in to move papers from the VIN on a car that was said to not be a search in New York v. Class. But a VIN is exposed to the public while the data in the black box isnt, and the statement as to VINs in Class appears to be dicta. On the whole, my tentative sense is that this was a search.

Whether accessing the data should require a warrant is an interesting question. Im not sure of the answer. This was information in an automobile: Should the automobile exception apply such that the government needs probable cause but no warrant? Perhaps not, on a theory that Riley trumps the automobile exception and the auto exception doesnt apply to electronic storage devices. See United States v. Camou. Or perhaps so, on the thinking that Riley doesnt change the automobile exception. Also, theres a plausible argument that the regulations governing event data recorders diminish the expectation of privacy such that no warrant should be required even though accessing them is a search. See Delaware v. Prouse.

These are tricky questions, I think, at least based on current Fourth Amendment caselaw.

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The Fourth Amendment and access to automobile 'black boxes' - Washington Post

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Fourth Amendment - RI Future RI Future US Attorney General Jeff Session's threat to cut off federal funding to so-called sanctuary cities is nothing but unseemly saber-rattling, says Steve Brown of the ... ACLU of RI Calls AG Sessions' Sanctuary City Threats Unseemly Saber-RattlingGoLocalProv all 8 news articles »

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Fourth Amendment - RI Future - RI Future

Rep. Luis Gutirrez (D-Ill.) says Fourth Amendment cities is a more accurate name for the sanctuary cities being targeted by the Trump administration.

Heres how I see it yeah, they call them sanctuary cities, he told host Chris Cuomo Wednesday on CNNs New Day." "What I would say, Chris, is theyre Fourth Amendment cities.

Gutierrez used Chicago as an example of how cities can protect the Fourth Amendment, which prohibits unreasonable searches and seizures by the government unless it obtains a warrant.

The DEA, the FBI, the ATF they get warrants right? he said. "They go and pick people up.

What [Immigration and Customs Enforcement] which is another federal law enforcement agency does is it wants to have people detained and wants the City of Chicago to go after people without any probable cause being submitted before the court and without a warrant, Gutierrez added.

If you supply a warrant to the City of Chicago, we will absolutely honor that warrant. But youve got to get a warrant.

Attorney General Jeff SessionsJeff SessionsFiorina calls for special prosecutor for Russia probe The Hill's 12:30 Report Dem rep: Sanctuary cities are actually Fourth Amendment cities MORE said Monday that state and local governments seeking Justice Department grants must certify they are not sanctuary cities before receiving the money.

Such policies cannot continue, Sessions said during a surprise stop at the White Houses daily press briefing. "They make our nation less safe by putting dangerous criminals back on the streets.

The announcement was the latest step by the Trump administration to crack down on sanctuary cities, which do not assist federal authorities in enforcing immigration laws. Those cities say enforcing immigration laws would hurt law enforcement because undocumented immigrants would not come forward with information or to report crimes.

But the attorney general said compliance with federal immigration laws is now a prerequisite for state and local governments to receive grants from the Justice Department's Office of Justice Program.

The office provides billions of dollars in grants and other funding to help criminal justice programs across the country.

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Dem rep: Sanctuary cities are actually 'Fourth Amendment cities ... - The Hill

Yesterdays argument in County of Los Angeles v. Mendez was, in a word, unsatisfying. The question of governmental liability for a law enforcement shooting of innocent individuals is extremely fact-intensive, and the law in this area is unsettled enough that assembling a majority for general Fourth Amendment rules on this record presents quite a challenge. It is possible to imagine some general statements that the court could agree on, but when it comes time to either affirm or reverse the specific award here, the justices might well split 4-4. Accurate tea-leaf reading seems impossible based on this argument transcript; the justices themselves seemed undecided. But in the end, at least four justices may view a tie as the fairest result on this record: The damages award for the sympathetic plaintiffs here would be left in place, without a divided Court issuing conflicting opinions on the law.

A Fourth Amendment violation, but a subsequent reasonable shooting

As previewed here, Angel Mendez and his wife present sympathetic facts, while the law enforcement officers start off with a Fourth Amendment violation. In brief:

Two Los Angeles County Sheriffs deputies were sent into the backyard of a home, while other officers forced their way into the house itself without a warrant or consent. In the backyard, the deputies came upon a shack occupied by the Mendezes. Guns drawn, the deputies opened the door of the shack without a warrant and without knocking or announcing who they were. Mendez, not knowing who was barging into his home, picked up a BB gun (just moving it, not aiming it, as the district judge found) in order to get out of bed. Seeing this, the deputies opened fire, causing significant injuries. Mendezs leg had to be amputated below the knee.

After a five-day bench trial of the Mendezes civil suit against the county and the deputies, the district judge settled many disputed facts and legal questions, and calculated damages for the Mendezes at roughly $4 million. The judge ruled that the deputies (at the house and at the shack) had violated the Fourth Amendment by conducting their entries without a warrant; no exceptions to the warrant requirement applied. The judge also ruled that the deputies had violated the Fourth Amendments knock and announce requirement. But the judge further ruled that at the moment they fired their guns, the deputies were acting reasonably because they thought someone was going to shoot them. However, after all was said and done, the judge concluded that the government was liable for the damages because the deputies had recklessly provoked the confrontation (by entering without a warrant and without announcing).

The U.S. Court of Appeals for the 9th Circuit affirmed the award on appeal. Although law enforcement officers are entitled to official immunity unless they violate clearly established rights, the court of appeals ruled that the Fourth Amendments warrant requirement was clearly established; thus the officers are not immune from damages for that violation. But the court also ruled that it was not clearly established that the deputies had to knock and announce in this specific context, because the officers at the house had already knocked and announced. So (as was assumed at the argument yesterday), because the deputies receive official immunity for the knock and announce violation, that violation cannot support an award of damages. Nevertheless, the 9th Circuit affirmed the award on two grounds: (1) under the circuits own provocation doctrine, the deputies can be liable if they recklessly provoked the situation; and (2) even aside from provocation, the deputies are liable under basic notions of proximate cause.

Oral argument: four justices advocate relief, while four others see no proximate cause?

Yesterdays argument addressed both of the 9th Circuits grounds, but focused almost entirely on the second one, proximate cause. (No justice mentioned the Mendezes briefed argument that the countys cert petition had presented three questions but then reduced them to two somewhat different questions at the merits stage.)

Justice Sonia Sotomayor jumped in first, appearing to defend damages for police shooting victims who had nothing to do with causing the loss. Noting that homeowners have a Second Amendment right to possess firearms to protect themselves, Sotomayor and (and later Justices Elena Kagan and Stephen Breyer) seemed to suggest that deputies should reasonably foresee a violent confrontation if they enter unlawfully.

But Josh Rosenkrantz, an experienced Supreme Court advocate who argued for the county, firmly and repeatedly reminded the court that the failure to knock and announce in this case is assumed not to violate clearly established law, so that damages cannot be based on that. Kagan then presented perhaps the best argument for the Mendezes: Shouldnt this be viewed more generally as an unauthorized entry that violates the Fourth Amendment and can support damages? Breyer similarly asked a bit later why do you break it down this way? and if you look at all the circumstances, why isnt there proximate cause? Justice Ruth Bader Ginsburg also offered a couple of seemingly favorable remarks; that adds up to four justices possibly favoring the Mendezes.

Indeed, Leonard Feldman, about to argue for the Mendezes, must have been pleased when Justice Anthony Kennedy (a potential fifth vote) then got into a brief squabble with Rosenkrantz. Kennedy presented a hypothetical, and when Rosenkrantz gave a no damages response, Kennedy said, then we simply have no way to enforce the warrant requirement, you want us to write that in the law? But as described below, any hope by the Mendezes for Kennedys vote appears to have been short-lived.

Nicole Saharsky then argued for the solicitor general in support of the county, and she focused her remarks more generally on the 9th Circuits provocation doctrine. Sotomayor asked why does a police officer get a pass if the officer creates the dangerous situation? But Chief Justice John Roberts intervened, asking is the label whats wrong? and noting that I dont think of it as provocation that you should have gotten a warrant earlier in the day. Saharsky stayed focused on her general critique of the provocation theory, calling it incredibly ill-defined. But Kennedy then shifted the argument back to one of proximate cause those are two different things, right?

Kagan continued to press the best argument for the Mendezes, seeking agreement that in general, an unauthorized entry produces violence or might produce violence. The justices also demonstrated the special position that the solicitor generals office occupies, permitting Saharsky to add one more sentence to her argument not once but three times after her time had expired.

Feldman who also argued the Sheehan case two terms ago in which Justice Samuel Alitos opinion for the court noted criticism of the provocation doctrine then began by presenting a generalized balancing test that appeared to gain no traction with the court. (Justice Antonin Scalia would have blanched balancing tests were his bane.) Kennedy drove the argument back once more to the specific question of proximate cause on this record and then flatly said, I just dont see the proximate cause between failure to get the warrant and what happened here. Alito (a longtime critic of the provocation doctrine) mildly challenged Feldman, and Roberts then focused firmly on the relationship between not getting a search warrant and the shooting: Why did that make a difference? [T]he failure to get a warrant did not cause the entry. That too seems to add up to four votes, against the Mendezes, if one assumes that Justice Clarence Thomas (who asked no questions) is also likely to side with the county.

When Roberts repeated, I dont know why the failure to get a warrant matters, Kagan immediately asked, can I suggest why?, and did. As she continued her explanation, Roberts, in his low-key way, offered perhaps the best line of the term: Counsel [referring to Kagan], if I could interrupt you to ask a question.

Conclusion: the real action is in conference, and the result seems uncertain

As with all the courts arguments, there is much more in the transcript than can be recounted here. But Kennedy summed it up at the end, quietly implying that the real action will happen during the justices private conference this week: Based on the arguments of counsel, we [and I would emphasize the we] can have our discussion as to whether or not it was indeed proximate.

Re-reading the transcript, I honestly am not sure what the justices will do. If the desire to end or limit the provocation doctrine is strong, perhaps some opinion (or opinions) will issue. On the other hand, it is not hard to imagine an even split here, with four justices firmly believing that the Mendezes innocent actions, coupled with the deputies unreasonable behavior, justify affirming the award. Yet there is little doubt that some justices would strongly dislike that outcome. In that case, I can also imagine seeing something Ive never seen before (although Professor Dan Epps advised me late last night of one precedent from 1960): separate unhappy opinions accompanying a one-sentence affirmed by an evenly divided court judgment.

Posted in County of Los Angeles v. Mendez, Analysis, Featured, Merits Cases

Recommended Citation: Rory Little, Argument analysis: An unsatisfying argument regarding Fourth Amendment qualified immunity and proximate cause, SCOTUSblog (Mar. 23, 2017, 11:24 AM), http://www.scotusblog.com/2017/03/argument-analysis-unsatisfying-argument-regarding-fourth-amendment-qualified-immunity-proximate-cause/

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Argument analysis: An unsatisfying argument regarding Fourth Amendment qualified immunity and proximate cause - SCOTUSblog (blog)

In the year since Justice Antonin Scalia died, the eight-justice court has repeatedly decided only issues that they can agree on, and has frequently remanded more difficult questions for future resolution. Unsurprisingly (see my post-argument analysis), that pattern held true in todays decision in Manuel v. City of Joliet. A 6-2 majority ruled that the Fourth Amendment is the proper basis on which to challenge a post-arrest detention that was continued for seven weeks, allegedly without probable cause. Beyond that, Justice Elena Kagans opinion le[ft] all other issues for remand, over Justice Samuel Alitos and Clarence Thomas dissents.

Taking the complaint as true

Elijah Manuel alleged that an officer pulled him from a car, beat him, called him racial slurs, and then arrested him for drugs even though a field test on pills Manuel was carrying came back negative. He further alleged that an evidence technician at the police station conducted another test on the pills that also came back negative, but that the technician falsely stated that the test was positive. Another officer then swore out a complaint against Manuel; based on all these false statements, a county judge ordered Manuel to be detained. Manuel was not released until seven weeks later, after a state police lab reported that the pills contained no controlled substances and for unknown reasons, the state prosecutor waited a month to move for dismissal. Two years later, Manuel sued the City of Joliet and its officers for violation of his civil rights under 42 U.S.C. 1983, alleging two Fourth Amendment violations: his false arrest and his prolonged unlawful post-arrest detention.

The district court dismissed Manuels challenge to his arrest under the applicable two-year statute of limitations, because Manuels lawsuit had been filed more than two years after the date of his arrest (although within two years of his release from detention). As for the detention, the district court relied on circuit precedent to rule that a detention occurring after lawful process is instituted (here, the county judges detention order) could be challenged only under the due process clause, not the Fourth Amendment. The U.S. Court of Appeals for the 7th Circuit affirmed.

The Fourth Amendment question answered by the court

Todays holding is clear: An unlawful pretrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process in a criminal case. Despite stray suggestions by lone justices in some prior cases, such a pretrial detention claim fits the Fourth Amendment as hand in glove. When some formal legal process has gone forward based on, as was alleged here, false law enforcement statements, that process has done nothing to satisfy the Fourth Amendments probable cause requirement. The Fourth Amendment, and not the due process clause, provides the appropriate lens through which to view [such] a claim.

Remaining questions not answered

Justice Kagans crisp opinion acknowledges that it addresses only the threshold inquiry, and notes that determinations of the elements of, and rules associated with, an action seeking damages for an unlawful-pretrial-detention action still must be made. Specifically here, the question whether the Fourth Amendment action accrues on the day the detention started, or does not accrue until the detention ends, remains (although the majority does provide an end-point, saying in a footnote that for an unlawful pre-trial detention claim, once a trial has occurred, the Fourth Amendment drops out). After offering brief comments regarding the general relationship of state common law rules and remedies to federal civil rights actions, the court remanded on any remaining issues, repeating a familiar point: [w]e are a court of review, not of first view.

Here is the courts general guidance: Federal courts reviewing claims under Section 1983, when not bound by federal law, should look first to the common law of torts. But such common law is meant to guide, rather than to control, federal actions, more as a source of inspired examples than of prefabricated components (quoting Hartman, 2006). Federal courts can apply, select among, or adjust common-law approaches, and must closely attend to the values and purposes of the constitutional right at issue.

Justices Alito and Thomas dissent, but not from the narrow holding

Justice Samuel Alitos dissent, joined by Justice Clarence Thomas, begins: I agree with the Courts holding : The protection provided by the Fourth Amendment continues to apply after the start of legal process. That much, then, is unanimous. Alito disagrees, however, with any further suggestion that new Fourth Amendment claims continue to accrue as long as pretrial detention lasts. He says this would stretch[] the concept of a seizure much too far. Similarly, Manuel should not receive the benefit of a favorable termination accrual rule, because that rule applies only to common-law malicious prosecution claims, and those sorts of claims are not Fourth Amendment claims in Alitos view.

Alito argues instead that a Fourth Amendment violation is fully accomplished when an impermissible seizure [first] occurs so that the two-year limitations period would have run in this case. (On this narrow point Thomas filed a separate two-paragraph dissent, saying that although he agrees generally with Alito, he would leave the precise moment of accrual open for a case in which it actually matters.) Alitos first seized accrual theory would conflict with a contrary continuing violation theory that has previously been advanced by Justice Ginsburg a disagreement that the majority today assiduously avoids resolving.

Finally, Alito criticizes the majority for not considering every issue included in the Question Presented that Manuel asked the court to review. Kagan responds in footnote 10 that we have resolved the primary issue presented, and the fact that Manuel jumped the gun on further issues provides no warrant for our doing so too.

Conclusion

Although Alito also claims that the courts opinion inject[s] much confusion and will dramatically expand[] Fourth Amendment liability, the Fourth Amendment ruling that the majority does announce that the Fourth Amendment, and not the due process clause, governs a claim of unlawful pretrial detention was the same answer given previously by ten other federal appellate courts. It seems narrow enough to give lower courts guidance while not unnecessarily resolving further points that were not well-presented, or well-argued, here.

Click for vote alignment by ideology.

Posted in Manuel v. City of Joliet, Analysis, Featured, Merits Cases

Recommended Citation: Rory Little, Opinion analysis: The Fourth Amendment governs unlawful pretrial detention claims even after legal process begins; everything else is remanded, SCOTUSblog (Mar. 21, 2017, 4:15 PM), http://www.scotusblog.com/2017/03/opinion-analysis-fourth-amendment-governs-unlawful-pretrial-detention-claims-even-legal-process-begins-everything-else-remanded/

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Opinion analysis: The Fourth Amendment governs unlawful pretrial detention claims even after legal process begins ... - SCOTUSblog (blog)