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Back in August, the Third Circuit handed down an unpublished opinion in United States v. Gomez (August 8, 2014), that appears to have rejected the mosaic theory of the Fourth Amendment, at least in the context of telephone metadata. I havent seen any coverage of the decision elsewhere, so I thought I would blog it.

In Gomez, the government obtained a pen register order to monitor the metadata for Gomezs telephone calls for about 5 weeks. Gomez argued that under the Jones concurrences, the prolonged surveillance was sufficient to constitute a Fourth Amendment search. The Third Circuit disagreed in an opinion by Judge Smith joined by Judges Vanaskie and Schwartz:

Gomez first argues that the DEAs prolonged warrantless use of a pen register and trap and trace device violated his privacy rights under the Fourth Amendment. We agree with the District Court that this argument is foreclosed by Smith [v. Maryland]. Gomez provided a third party in this case, Sprint with all the data that the DEA obtained through the use of the pen register and trap and trace device. In so doing, Gomez abandoned his privacy interest in this data because he assumed the risk that the information would be divulged to police. Smith, 442 U.S. at 745, 99 S.Ct. 2577. Although Justice Sotomayor has urged the Court to reconsider Smiths holding that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties, United States v. Jones, U.S. , 132 S.Ct. 945, 957, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring), we remain bound by Smith until a majority of the Court endorses this view.

The Third Circuit then adds the following explanatory footnote:

In the proceedings below, Gomez conceded that his position was contrary to Smith, but cited Justice Sotomayors concurrence in Jones for the proposition that Smith is antiquated and must be reconsidered. J.A. 60. Gomez presents a different argument on appeal. Instead of urging us to overrule Smiths third party doctrine, Gomez contends that this doctrine has already been cabined by five Justices of the Supreme Courta number he reaches by combining Justice Sotomayors and Justice Alitos concurrences in Jones. Appellants Br. 27, 31. As Gomez did not raise this argument before the District Court, it is waived. Holk v. Snapple Beverage Corp., 575 F.3d 329, 336 (3d Cir.2009).

In any event, we reject Gomezs contention that the concurrences in Jones cabined Smith. Justice Alitos concurrence did not explicitly seek to limit Smith, and indeed relied heavily on the fact that drivers of automobiles do not expect third parties to possess detailed, long-term data regarding their location. Jones, 132 S.Ct. at 964 (Alito, J., concurring). By contrast, cell phone users do expect service providers to possess detailed, long-term data regarding the numbers they dial because this information is necessarily conveyed in the course of connecting a call. Smith, 442 U.S. at 743, 99 S.Ct. 2577. By disclosing this data, cell phone users, unlike drivers of automobiles, assume[ ] the risk that a third party will convey it to law enforcement. Id. at 744, 99 S.Ct. 2577. Therefore, we are not persuaded that the two concurrences in Jones have limited Smith to short-term call monitoring.

Off the top of my head, I think this is the first federal court of appeals opinion to directly address the important question of whether the mosaic theory modifies Smith v. Maryland. The opinion was not published and is therefore non-precedential. But given that this is likely to be an important issue when the D.C. Circuit reviews Klayman v. Obama on November 4th, I thought the Third Circuits opinion was worth noting.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.

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Volokh Conspiracy: Third Circuit on the mosaic theory and Smith v. Maryland

The first argued case in the new Supreme Court term will be Heien v. North Carolina, a Fourth Amendment case about whether a reasonable mistake of law can create cause for a Fourth Amendment search or seizure. I think the defendant has the better argument that the answer is no. In this post, Ill explain the case and why I think the defense should prevail.

I. The Facts, and A Brief History of Brake-Light Law

The facts of the case are simple. A North Carolina police officer stopped a car for having a broken right rear brake light. The stop led to a consent search, and the search led to the discovery of drugs in the car. So far it sounds like a pretty routine Fourth Amendment traffic stop case. But heres the twist: If you look closely at thetext of North Carolinas traffic laws, its at best unclear whetheritprohibits driving with one broken brake light.

A little bit of history is helpful here. Decades ago, it was common for cars to come equipped with only one brake light. The early brake lights often had STOP written on them,and unsurprisinglythey were known as stop lamps. At the time, it was common for the traffic laws to require cars to have only one stop lamp.

Thats antiquated now, of course. But a lot of state laws still have a residual form of this. In particular, many state laws require one working stop lamp for antique cars but two such stop lampsfor more modern cars. To get a flavor of this common practice, see the laws of Florida, California, Texas, New York, Michigan, Tennessee, the District of Columbia, or Ohio.

North Carolinas traffic law is different. The key statutory provision requires that modern cars have a stop lamp but has no such requirement for pre-1956 cars.Heres the language:

No person shall sell or operate on the highways of the State any motor vehicle, motorcycle or motor-driven cycle, manufactured after December 31, 1955, unless it shall be equipped with a stop lamp on the rear of the vehicle. The stop lamp shall display a red or amber light visible from a distance of not less than 100 feet to the rear in normal sunlight, and shall be actuated upon application of the service (foot) brake. The stop lamp may be incorporated into a unit with one or more other rear lamps.

Violation of this law is a misdemeanor criminal offense, see N.C.G.S.A. 20-176.

Why require only one stop lamp for more modern cars and none for older cars? I have no idea. Its hard to know what the legislature was thinking. A few other states in the southern U.S. have traffic codes that also require only one stop lamp, perhaps just as a historical relic. See Alabamas code, for example, which dates back to 1927. Georgia, West Virginia, and South Carolina have similar language but add the additional requirement that all original equipment has to be working properly, which as a practical matter requires multiple working brake lights. See, e.g., Georgia 40-8-26; W. Va. Code Ann. 17C-15-18(a)(1); State v. Jihad, 553 S.E.2d 249 (S.C 2001) (interpreting South Carolinas brake light law). North Carolinas law appears to be somewhat unique. It has a provision that the originally-equipped tail lights have to be working (that is, the red lights that go on when the front headlights or parking lights are on), but it does not appear to apply that same standard to brake lights.

Ok, back to the case. At trial, Heien argued that the North Carolina traffic law did not prohibit driving with one broken brake light so long as the other brake light was working. After all, with one brake light out and the other working, the car did have a functioning stop lamp. The North Carolina Court of Appeals agreed with Heiens reading of North Carolinas law. Under its decision, driving with one broken brake light is perfectly legal in North Carolina.

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Volokh Conspiracy: A few thoughts on Heien v. North Carolina

TIME U.S. Law Pet Owners Look to Muzzle Police Who Shoot Dogs Brittany Preston Bereaved owners argue that when police shoot dogs it a violates their Fourth Amendment rights

Correction appended, Sept. 26

Lexie, a Labrador mix, was barking in fear when the police arrived at her owners suburban Detroit house early in the morning last November. The officers, responding to a call about a dog roaming the area, arrived with dog-catching gear. Yet they didnt help the one-year-old dog, who had been left outside the house, according to a lawsuit filed in federal court: Instead, they pulled out their guns and shot Lexie eight times.

The only thing Im gonna do is shoot it anyway, the lawsuit quotes an officer saying. I do not like dogs.

Such a response, animal advocates say, is not uncommon among law enforcement officers in America who are often ill-equipped to deal with animals in the line of duty. And now bereaved owners like Brittany Preston, Lexies owner, are suing cities and police departments, expressing outrage at what they see as an abuse of power by police. Animal activists, meanwhile, are turning to state legislatures to combat the problem, with demands for better police training in dealing with pets.

There are no official tallies of dog killings by police, but media reports suggest there are, at minimum, dozens every year, and possibly many more. When it comes to Prestons dog, officials from the city of St. Clair Shores and the dog owner agree on little. City police say the dog attacked, prompting officers to open fire in self-defense. But the lawsuit filed by Preston cites police audio recordings to argue that the November 2013 shooting was premeditated, prompted by officers eager to kill a dog. Preston is suing the city for violating her Fourth Amendment right to protection from unreasonable search and seizure.

We want whatever it takes to make sure it doesnt happen again, said Christopher Olson, Prestons lawyer. Before this case I wasnt a dog shooting lawyer, but I am now.

St. Clair Shores defended the officers actions.

The animal was only put down after a decision was made that it was in the best interest of the residents, said city attorney Robert Ihrie, who is defending the city in the lawsuit. Sometimes police officers are in a position where they need to make very quick decisions for the protection of themselves and others.

The Fourth Amendment argument gained traction in 2005, when the San Jose chapter of the Hells Angels sued the city and the police department because officers had killed dogs during a gang raid in 1998. A federal appeals judge found that the Fourth Amendment forbids the killing of a persons dog when that destruction is unnecessary, and the Hells Angels ultimately won $1.8 million in damages. In addition to the St. Clair lawsuit, other lawsuits stemming from police shootings of dogs are being planned or filed in Idaho, California, and Nevada.

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Pet Owners Look to Muzzle Police Who Shoot Dogs

8/5/14 - Xapo offers reimbursement, Ulbricht cries Fourth Amendment, Dogecoin Litecoin merge mining
http://www.ReadTheReviewsFirst.com.

By: Peter Griffen

Continued here:
8/5/14 - Xapo offers reimbursement, Ulbricht cries Fourth Amendment, Dogecoin Litecoin merge mining - Video

This article originally appeared on AlterNet.

Checkpoints occupy a unique position in the American justice system. Atthese roadside stations, where police question drivers in search of the inebriated or illegal, anyone can be stopped and questioned, regardless of probable cause, violating theFourth Amendments protection against general warrants that do not specify the who/what/where/why of a search or seizure. Though the Supreme Court agrees that checkpoints skirt the FourthAmendment, the Court has been clear that the special needs checkpoints serve, like traffic safety andimmigration enforcement, trump the slight intrusions on motorists rights.

We have checkpoints for bicycle safety, gathering witnesses, drug trafficking, illegal immigration and traffic safety.Many states,like California, require cops to abide by neutral mathematical formulas when choosing which drivers to pull over (like 1 in every 10 cars). In reality, these decisions are left to the discretion of individual police officers, which results in a type of vehicular stop and frisk.

Thats why people in Arizona havesuedthe Department of Homeland Security for its wantondeployment of immigration checkpoints in their state.Among their complaints are racial profiling, harassment, assault and unwarranted interrogation,and detention not related to the express special need of determining peoples immigration status.

A key legal detail about checkpoints is that they cannot be used for crime control, as that would require individualized probable cause. But legal scholarsarguethat non-criminally-minded checkpoints are also illegal. They point out that the FourthAmendment protected the colonists from being searched for non-criminal wrongdoing. Doing nothing wrong at all, they argue,is not grounds to be searched or haveyour property seized.

Regardless, unlike DUI checkpoints, these immigration checkpoints, expanded by the 2006Secure Fence Act, are only allowed within 100 miles of the continental United States border. But thats abig perimeter. Nine of the countrys 10 largest cities, entire states and some two thirds of the US population reside within this constitutionallyexempt zone.

At these checkpointssome of which have becomepermanentfixtures on the highwaypeople are forced to stop when flagged down, againregardless of probable cause. But the extent to which people are legally obliged to answer officers questions isunclearand seemingly arbitrary. Not surprisingly, the militarysimmigration checkpoints havegarneredoutspoken criticism from across the political spectrum.Legalized by the Supreme Court in1976, these checkpointsseem to have taken on a newmomentum in the post-9/11era. (Private militias have eventaken tosetting uptheir own versions.)

DUI checkpoints, on the other hand,deemedconstitutional in 1990, monitor roadwaysin38 states. But they have been outlawed by12 othersthat have invoked states rights to increase federal civil liberty protections.In the Courts 1990opinion, Chief JusticeWilliam Rehnquist wrote that states interest in eradicating drunk driving is indisputable and that this interest outweighed the measure of the intrusion on motorists stopped briefly at sobriety checkpoints, which he described as slight.

In the dissent, William Brennan reminded the Court that, some level of individualized suspicion is a core component of the protection the Fourth Amendment provides against arbitrary government action. In pulling people over at random, checkpoints remove this individualized component.

Today, the practice seems to be experiencing a renaissance of sorts. With the help of local police, private government contractors have used the tactic to collect anonymous breath, saliva and blood (DNA) samples of American motorists for the federally fundedNational Roadside Survey of Alcohol and Drugged Driving. Participation in the survey is voluntary, despite the confusion that may come with uniformed police asking for bodily fluids. Motorists are offered $10 for cheek swabs and $50 for blood samples. These practices have sparked considerable publicoutrage; law enforcement officials inSt. Louis, Missouriand Fort Worth, Texashavestatedtheir intent to limit their future participationin the study.

Continue reading here:
The chilling loophole that lets police stop, question and search you for no good reason