• Cell Site Location Information: Private Parties, Agency, and the Rule in Carpenter

    Published By Stephen Preziosi

    TitleUnited States of America v. Lawrence D. Adkinson

    No. 17-3381

    United States Court of Appeals: Seventh Circuit

    Decided on February 14th, 2019

    Federal Appeals Law Firm in all 50 States

    New York,Boston,Philadelphia,Los Angeles

    San Francisco, San Diego ,Tampa , Miami

    Federal Appeals Lawyer in Illinois, Indiana, Wisconsin.

    ISSUE:

    Whether a company, as a private party, acted as an agent of the police in violation of the Fourth Amendment by providing data to the government that was collected from tower dumps without a search warrant. 

    HOLDING:

    The Court held that a company, as the private party, was not transformed into an agent of state by furnishing data to government that had been collected from tower dumps without search warrant.  Where the company acted in its own interest to prevent future robberies of its stores and recovery of its property, there is no evidence that it expected benefits from the government.

    “A search or seizure by a private party does not implicate the Fourth Amendment

    unless the private party is acting as an instrument or agent of the government.”

    FACTS OF THE CASE:

    Defendant Lawrence Adkinson robbed T-Mobile phone stores in Indiana and Kentucky.  As part of its investigation, T-Mobile conducted tower dumps: it pulled data from cell sites near the stores to identify which phones had connected to them—and thus were close to the crimes.  T-Mobile’s privacy policy allowed T-Mobile to disclose information about its phones’ users to satisfy any applicable legal process or enforceable governmental request or to protect its rights or interests, property or safety or that of others. Law enforcement used the information from T-Mobile to obtain a court order under the Stored Communications Act, 18 U.S.C. § 2703, granting the FBI access to additional cell-site data.

    COURT’S ANALYSIS:

    The Court held that a company, as the private party, was not transformed into an agent of state by furnishing data to government that had been collected from tower dumps without search warrant.  The Court makes a distinguishes between this case and Carpenter.  In Carpenter, the Supreme Court held that the government may not, without a warrant supported by probable cause, compel a cellular service company to search for and supply the data that its cell sites reveal about a user’s past movements in violation of the Fourth Amendment.  In this case, the record does not show that the government compelled T-Mobile to provide its data. 

    The Court agrees that the Fourth Amendment was not violated for three primary reasons:

    (1) T-Mobile is a private party and Adkinson has not shown that it was the government’s agent.  In order to show agency, defendant must establish that T-Mobile agreed to act on the government’s behalf and to be subject to its control or that the government ratified T-Mobile’s conduct as its own. T-Mobile acted in its own interest to prevent future robberies of its stores and recovery of its property, there is no evidence that it expected benefits from the government.

    (2) Adkinson consented to T-Mobile collecting and sharing his cell-site information.  As a condition of using a phone serviced by T-Mobile, Adkinson agreed to T-Mobile’s policy that T-Mobile could disclose information when reasonably necessary to protect its rights, interests, property, or safety, or that of others. And in accordance with its policy, T-Mobile shared information with law enforcement after one of its stores was robbed at gunpoint.

    (3) Carpenter did not invalidate warrantless tower dumps, which identified phones near one location, at one time because the Supreme Court declined to rule that these dumps were searches requiring warrants.

  • Bill of Rights: Eighth Amendment Excessive Fines Clause Applicable To All 50 States

    Published By Stephen Preziosi

    Eighth Amendment’s Excessive Fines Clause is Incorporated by the Fourteenth Amendment’s Due Process Clause

    Timbs v. Indiana

    No. 17-1091

    Supreme Court of the United States

    Decided February 20, 2019

    Click Below:

    Federal Appeals Law Firm in all 50 States

    New York,Boston,Philadelphia,Los Angeles

    San Francisco, San Diego ,Tampa , Miami

    ISSUE:

    Whether the Eighth Amendment’s Excessive Fines Clause is incorporated into the Fourteenth Amendment and through the Due Process Clause is applicable to the States.

    HOLDING:

    The Court held that the Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause.  The Due Process Clause incorporates and renders applicable to the States Bill of Rights protections fundamental to the nation’s scheme of ordered liberty or rooted in the nation’s history and traditions. 

    FACTS OF THE CASE:

    Tyson Timbs plead guilty to dealing in a controlled substance and conspiracy to commit theft in Indiana State court.  When Timb’s was arrested, police officers seized his Land Rover SUV which he purchased for $42,000 with money received from an insurance policy. 

    After pleading guilty in the criminal case, the trial court held a hearing on the forfeiture demand.  Originally, the Supreme Court of Indiana denied the requested forfeiture because forfeiture of the Land Rover would be disproportionate to the gravity of Timb’s offense and, therefore, unconstitutional under the Eighth Amendment’s Excessive Fines Clause.  The Indiana Supreme Court later reversed, stating that the Executive Fines Clause constrains only federal action and is inapplicable to state impositions.  

    COURT’S ANALYSIS:

    The Court held that the Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause.  The Due Process Clause incorporates and renders applicable to the States Bill of Rights protections fundamental to the nation’s scheme of ordered liberty or rooted in the nation’s history and traditions. 

    With the exception of a handful of scenarios, the Court has determined that the Fourteenth Amendment’s Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States.  Incorporated Bill of Rights guarantees are enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.  Therefore, there is no distinction between the federal and state conduct the Bill of Rights prohibits or requires. 

    Under the Eighth Amendment, excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.  The Court focuses on the phrase “nor excessive fines imposed” which limits the government’s power to extract payments, whether monetary or in kind as punishment for some offense.  The Court determined that the Fourteenth Amendment incorporates this protection. 

    In support of applying the Eighth Amendment to the States, the Court cited the Magna Carta, the Virginia Declaration of Rights and the English Bill of Rights.  By 1787, the constitutions of eight States, which accounted for 70% of the U.S. population, forbade excessive fines.  In 1868, the constitutions of 35 states, accounting for over 90% of the U.S. population, prohibited excessive fines. 

    Although the States’ apparent agreement that the right guaranteed by the Excessive Fines Clause was fundamental, abuse continued through involuntary labor in lieu of fines imposed upon newly freed slaves.  It was not until Congressional debates over the Civil Rights Act of 1866 that the joint resolution, otherwise known as the Fourteenth Amendment, mentioned the use of fines to coerce involuntary labor.  Today, all fifty States have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality. 

    Through the Incorporation Doctrine of the Fourteenth Amendment, the Due Process Clause, the Eighth Amendment’s Excessive Fines Clause is now applicable to all fifty states, they cannot force people to pay excessive fines or punishment.

  • Biometric Features are Testimonial in Nature and are Protected Statements Under the Fifth Amendment

    Published By Stephen Preziosi

    Biometric Features are Testimonial in Nature and are Protected Statements Under the Fifth Amendment

    In the Matter of the SEARCH OF A RESIDENCE IN OAKLAND, CALIFORNIA

    United States District Court, Northern District of California

    Case No. 4-19-70053

    Author’s Note: A Federal Court in the Northern District of California has held that the police may not force a suspect to provide biometric features when they want to unlock an electronic device because those biometric features are testimonial and protected by the Fifth Amendment. Biometric features are typically fingerprints, iris scans or facial scans. Although this case comes from a trial court, which I don’t normally blog on, I thought the holding was interesting. Even more interesting will be the appeal to the Ninth Circuit and how it will hold up compared to Schmerber v. California, 384 U.S. 757 (1966) and its progeny. 

    Decided on January 10th, 2019

    Federal Criminal Appeals in the Ninth Circuit Court of Appeals

    Federal Criminal Appeals in California

    ISSUE:

    Whether the Police may compel the use of biometric features, such as finger prints, facial or iris recognition, to open electronic devices such as cell phones and whether such police activity results in self-incriminating testimonial communication in violation of the Fifth Amendment where the government sought the authority to compel individuals to provide any biometric feature necessary to unlock a digital device.

    HOLDING:

    The Court held that biometric features, including finger prints, facial or iris recognition, are testimonial in nature and are, therefore, protected by the Fifth Amendment. The use of a suspect’s biometric feature to unlock an electronic device violates the Fifth Amendment right against self-incrimination because biometric features serve the same purpose of a password, and a person cannot be compelled to provide a passcode because it is a testimonial communication and, therefore, protected by the Fifth Amendment.

    FACTS OF THE CASE:

    In the investigation of two individuals believed to be involved in extortion, the Government submitted an application to the United States District Court for the Northern District of California for a search warrant to seize several items connected to the two suspects; amongst the items were electronic devices such as mobile phones and computers.  The Government sought the authority to compel any individual present at the time of search to utilize biometric features, such as fingerprinting or facial or iris recognition, for the purpose of unlocking the digital devices found in order to permit a search of the contents.

    COURT’S ANALYSIS:

    The Court held that biometric features, including finger prints, facial or iris recognition, are testimonial in nature and are therefore protected by the Fifth Amendment. The use of a suspect’s biometric feature to unlock an electronic device violates the Fifth Amendment’s right against self-incrimination.  The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.  While the Fifth Amendment does not specifically mention biometric features or digital devices, it is the duty of all Courts to safeguard Constitutional rights despite the advancement of technology.  To assume that citizens anticipate a waiver of their civil rights when using new technology is to leave them at the mercy of the ever-advancing technology. 

    In Doe v. United States, 487 U.S. 201, 291 (1988) it was held that a passcode cannot be compelled under the Fifth Amendment because the act of communicating the passcode is testimonial and expressing the contents of one’s mind falls directly within the protection of the Fifth Amendment.  Testimony is not limited to verbal or written communication.  An act that implies assertion of fact can constitute testimonial communication for the purposes of the Fifth Amendment, particularly a witness’s act of producing something could qualify as testimonial if conceding the existence, possession and control, and authenticity of the documents tended to incriminate them.  Certain acts, while incriminating, do not fall within the privilege. For example, furnishing a blood sample, submitting to fingerprinting, providing a handwriting or voice exemplar, or standing in a lineup.  There is a disparity between compulsion of communications or testimony, which violates the Fifth Amendment, and compulsion which makes a suspect or accused the source of real or physical evidence, which does not.   

    The Court Makes Two Major Distinctions Between Using Biometric Features to Unlock an Electronic Device and Submitting to Fingerprinting or a DNA Swab 

    One: Biometric features serve the same purpose of a passcode; they are used interchangeably, and both serve the purpose of securing the owner’s content.  The Court used the example of restarting a phone or keeping it locked for too long; in those cases, the phone may not accept any biometric feature at all and force the user to enter the passcode.  This is done to add an additional layer of security against someone who does not have the passcode.  The Government placed a sense of urgency on compelling individuals to provide biometric features as a means of bypassing their inability to compel the production of a passcode.  However, if a person cannot be compelled to provide a passcode because it is testimonial communication, a person cannot be compelled to provide one’s fingerprint, thumb, iris, face or other biometric feature to unlock the same device. 

    Two: Requiring someone to place their finger or thumb to a digital device is fundamentally different than requiring a suspect to submit to fingerprinting.  When a person uses their finger or thumb to unlock a device, they are asserting that the device belongs to them. By doing so, they assert that they are in the possession and control of the device with ownership or access to the phone and all of its digital contents are verified.  The act of unlocking a phone with a finger or thumbprint scan far exceeds the physical evidence created when a suspect submits to fingerprinting to compare his fingerprints to existing physical evidence found at a crime scene because there is no comparison or witness for the former.  A finger or thumb scan either confirms or denies the ownership or control of a device and, unlike fingerprinting, the authenticity cannot be reasonably disputed.   

    The Court held that the foregone conclusion doctrine does not apply here.  The foregone conclusion doctrine is an application of the Fifth Amendment by which the Government can show that no testimony is at issue.  It is used when the witness adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the documents.  It does not apply when the Government cannot show prior knowledge of the existence or the whereabouts of the documents ultimately produced in response to a subpoena.  Advanced mobile phones are entitled to greater privacy protection because they contain not only a digital form of many sensitive records that can be found in a search of a home but also a broad array of private information never found in a home in any form in the absence of the phone.  Therefore, mobile phones are subject to different treatment than more traditional storage devices, like safes, and should be awarded more protection.  

  • Use of Handcuffs During Investigatory Stop Is Not An Arrest

    Published By Stephen Preziosi

    Use of Handcuffs During Investigatory Stop Is Not An Arrest

    United States of America v. Fiseku

    17-1222-cr

    United States Court of Appeals: Second Circuit

    Decided October 4, 2018

    ISSUE

    Whether an officer’s use of handcuffs in an investigatory detention is unreasonable and provokes a de facto arrest without probable cause in violation of the Fourth Amendment when the officer had a reasonable suspicion to stop the defendant, examined the defendant’s license, patted him down and placed handcuff under the guise of officer safety.    

    HOLDING

    The Second Circuit Court of Appeals held that under unusual circumstances, such as those observed in this case, an officer’s use of handcuffs during an investigatory detention does not result in a de facto arrest under the Fourth Amendment.  The officers acted reasonably during the late-night investigatory stop in restraining Fiseku and two other individuals in handcuffs before the officers developed probable cause to arrest because 1) The officer was outnumbered before backup arrived. 2) The driver of the vehicle lied about the car’s transmission and potentially lied about harboring two additional people. 3) The officer did not know if the defendants could reach their weapons.

    FACTS OF THE CASE

    In September 2014 at about 1:15 AM, Sergeant Vincent Gruppuso pulled up to a white Nissan Pathfinder and engaged in a short discussion with the driver, later identified as Sefedin Jajaga.  He explained that the Pathfinder was stopped on a dirt pull-off because the car was having transmission problems and he was waiting for a friend who agreed to bring a tow truck.  While driving off, Gruppuso found the situation to be dubious because he knew of a vacant home for sale nearby that would be a prime target for… burglary.  He decided to go back and check on the vehicle only to find the Pathfinder driving on a nearby street only five minutes after the driver claimed to have transmission problems.  Gruppuso followed the car to a parking lot near the highway.

    Gruppuso entered the parking lot, and observed the Pathfinder parked in the far corner of the lot, surrounded by trees.  He parked nearby and saw three men in the vicinity of the Pathfinder: Jajaga in the driver’s seat, a second man, named Hughes, in the passenger seat and a third man, named Fiseku, walking around the rear of the vehicle.  At 1:25 AM, Gruppuso radioed for additional units to join him in the parking lot.  By the time additional officers arrived, Gruppuso had already begun questioning Fiseku: examining his driver’s license, patting him down and placing him in handcuffs.  Together, the three officers directed Jajaga and Hughes to exit the Pathfinder, then patted them down and handcuffed them as well.  The three men were handcuffed under the guise of officer safety. 

    The officers explained to the men that they were being detained; they were not told they were under arrest nor were they read their Miranda Rights while the officers investigated their suspicious behavior.  The defendants were separated for individual questioning and, with consent, Gruppuso searched the Pathfinder where he recovered the following items: baseball caps, a sweatshirt, a badge, a stun gun, a BB gun replicating a Colt .45 pistol, a blank pistol replicating a .25 automatic, flashlights, walkie talkies, gloves, a screw driver and duct tape. After the search was complete, officers were concerned about a potential home invasion, so they requested additional units to canvas the area. 

    In September 2015, Fiseku and Jajaga moved to suppress physical evidence recovered from the vehicle and statements made to the officers during the stop, arguing both points under the Fourth and Fifth Amendments.  In December 2015, the District Court entered an order granting in part and denying in part the suppression motion. The court rejected the defendant’s claim that there was a de facto arrest without probable cause in violation of the Fourth Amendment and reasoned that the officer’s conduct, including the handcuffs, was reasonable in light of the circumstances.  The court granted the motion to suppress the defendants’ statements because the defendants were subjected to interrogation without being read their Miranda rights.  They did, however, reject the defendants’ request to suppress physical evidence because Jajaga’s consent to search the vehicle was voluntary and freely given.

    COURT’S ANALYSIS

    The Second Circuit Court of Appeals held that under unusual circumstances an officer’s use of handcuffs does not result in a de facto arrest under the Fourth Amendment.  In the Fourth Amendment there is a defined right to be free from unreasonable searches and seizures however, an officer’s decision to briefly restrain a suspect in handcuffs is reasonable if it ensures the officers’ safety.   The U.S. Constitution intends for reasonableness to mean a balancing of particular need to search or seize against the privacy interests invaded by such actions.

    Generally, an arrest must be supported by probable cause; however, an officer may conduct a brief investigatory detention, commonly known as a Terry stop, as long as the officer has reasonable suspicion that the person to be detained is committing or has committed a criminal offense. Yet even a proper investigatory stop can ripen into a de facto arrest that must be based on probable cause. In considering a claim of de facto arrest, the courts consider the following facts:

    (1) the length of time involved in the stop; (2) its public or private setting; (3) the number of participating law enforcement officers; (4) the risk of danger presented by the person stopped; and (5) the display or use of physical force against the person stopped, including firearms, handcuffs, and leg irons.

    The courts cautioned in United States v. Newton, 369 F.3d 659, 674 (2d Cir. 2004) that no one of these factors is determinative.  But to satisfy the reasonableness standard, officers conducting stops on less than probable cause must employ the least intrusive means reasonably available to affect their legitimate investigative purposes.

    According to the court, this case presented unusual circumstances where an officer was able to handcuff a suspect without transforming a Terry v. Ohio,392 U.S. 1stop into an arrest.  Gruppuso had reason to believe that Jajaga lied about why he was stopped on a dirt pull-off when only five minutes after their initial interaction Gruppuso saw the Pathfinder drive into the dark parking lot surrounded by trees because it was highly improbable that Jajaga managed to start the car only moments after claiming the transmission of the car was broken.  Gruppuso’s suspicions were reasonably heightened when there were two additional passengers, Hughes and Fiseku, that he did not know of during the initial interaction with Jajaga.  Given the aforementioned observations and the fact that Gruppuso arrived in the parking lot only moments after the Pathfinder, it is reasonable for Gruppuso to have inferred that either Hughes and Fiseku were hiding in the car during the interaction or they had been waiting for Jajaga in the parking lot.  In either scenario, the court determined that in this setting, a reasonably cautious officer in Gruppuso’s position would have objective grounds to suspect that the three men were about to commit a crime, or that they had recently done so. 

    In the time it took for two additional officers to arrive, Gruppuso didn’t find any weapons or contraband on Fiseku’s person during the pat down but, the Supreme Court expressly recognized that suspects may injure police officers and others by virtue of their access to weapons, even though they themselves may not be armed.  The Michigan v. Long, 463 U.S. 1032, 1048 (1983) Court went on to explain that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.  Additional suspects Jajaga and Hughes were still seated in the Pathfinder when Gruppuso handcuffed Fiseku, where weapons could have been placed within reach.  Additionally, in the dark, surrounded by trees, Gruppuso couldn’t feasibly conduct a protective sweep to check for secreted weapons or additional associates while monitoring three suspects, who the District Court described as ‘muscular men’

    Handcuffs are generally seen as a hallmark of a formal arrest. Newton, 369 F.3d at 676 yet, the courts recognize that regardless of whether probable cause to arrest exists, a law enforcement agent, faced with the possibility of danger, has a right to take reasonable steps to protect himself. Sensing the conflict between the two principles, the courts elaborate that the Fourth Amendment will occasionally permit handcuffs in a Terry stop if the police have a reasonable basis to think that the person detained poses a present physical threat and that handcuffing is  the least intrusive means to protect against that threat. United States v Bailey, 743 F.3d 322 (2d Cir. 2014). 

    Fiseku prompts the courts to consider United States v. Bailey, where, on appeal, the courts found that there was a violation of the Fourth Amendment when the officers handcuffed the suspects because the record indicated no physical threat or other factors that would justify the handcuffing of these two men.  Conversely, Gruppuso was not looking to identify the men like in the Bailey case; he simply stumbled upon a suspicious scenario in the middle of the night in a secluded, wooded location.  His goal was to either confirm or deny his suspicion that they had committed, or were poised to commit, a home invasion or some other crime.  The likelihood of criminal activity increased the risk that one or more suspects had access to a weapon or might attempt to flee; therefore, Guppuso had to make the decision to best protect himself and the community, acting in the face of uncertainty about how many associates might be present, what sort of criminal activity they might be involved in, or whether any of them might have access to a weapon.