9/30/2011

By Ben Thompson, J.D. Candidate

It is no secret that technological development and innovation has been accelerating in recent decades at a dizzying pace. As a result, courts increasingly have applied the Fourth Amendment to circumstances involving new technologies that were barely anticipated ten years ago and completely unknown in 1791. This post briefly summarizes some upcoming cases and recent decisions involving the Fourth Amendment and technological change. These cases force the courts to strike a difficult balance between promoting the public good of efficient and effective law enforcement and protecting individuals from unreasonable infringements on their privacy.

United States v. Jones

            In 2008, Antoine Jones was convicted of conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base.[1] A crucial piece of evidence linking Mr. Jones to the alleged conspiracy was GPS data showing the movement of his vehicle.[2] The government obtained this data by attaching, without a warrant, a GPS device to Mr. Jones’ vehicle that tracked his movements for 24-hours a day for 4 weeks.[3] The D.C. Circuit reversed his conviction on the ground that attaching the GPS device without a warrant violated the defendant’s Fourth Amendment right to be free from unreasonable searches.[4] The D.C. Circuit’s ruling is inconsistent with the Ninth Circuit. The Ninth Circuit recently ruled that the warrantless tracking of a defendant’s vehicle through the use of a GPS device was not a search and so did not violate the defendant’s rights under the Fourth Amendment.[5]

            In its upcoming term, the Supreme Court will potentially resolve this circuit split when it reviews the D.C. Circuit’s decision. Specifically, the Court has asked the parties to address whether Mr. Jones’ Fourth Amendment rights were violated when the government used a tracking device that was placed on the defendant’s vehicle, without a warrant and without his consent, to monitor the vehicle’s movements on public streets.[6]

Use of a “Stingray” Phone Tracker

            The U.S. District Court of Arizona is set to hear a case against alleged hacker Daniel David Rigmaiden that could require it to decide on the constitutionality of the use of “stingray” phone trackers.[7] Stingrays can locate a cellphone as long as it is turned on and are currently used by local law enforcement in several jurisdictions.[8] Mr. Rigmaiden will apparently argue that using stingrays to search for cellphones in a home without obtaining a warrant is a violation of the Fourth Amendment.[9]

United States v. Musgrove

            In January 2011, detectives knocked at Mr. Musgrove’s residence inquiring about a posting on Craigslist that made threatening statements about a local mall.[10] After speaking to the detectives, Mr. Musgrove consented to a search of his home for “weapons or contraband.”[11] During the search, a detective touched the mouse of a computer in the residence causing the screen saver to disappear and revealing Mr. Musgrove’s Facebook wall on which he had posted vaguely threatening remarks about local malls.[12]

            The U.S. District Court for the Eastern District of Wisconsin found that the evidence of the Facebook wall should be suppressed.[13] The court argued that, by manipulating the mouse, the detective had caused material (i.e. the Facebook page) to appear on the screen that was previously unseen.[14] This was a search and thus required either consent or a warrant prior to executing it.[15]

4. The Fourth Amendment and Digital Searches

            Law enforcement officials might obtain a warrant to search computers and digital media (e.g. DVD’s, thumb drives) located in a home for evidence relating to a specific crime. What happens apply if law enforcement officials find evidence of unrelated crimes while searching such devices? Does the plain view doctrine apply?

            In 2010, the Fourth Circuit addressed this question in United States v. Williams.[16] In this case, the police obtained a warrant authorizing them to search the defendant’s computers and digital media for evidence of crimes relating to making threats and computer harassment.[17] While searching a DVD in pursuance of the warrant, police discovered child pornography.[18] The Fourth Circuit ruled that the seizure of such images of child pornography did not violate the defendant’s Fourth Amendment rights because the plain view doctrine applied.[19] The court reasoned that in order to execute the warrant the police must view each file on the DVD, and since the images of child pornography were immediately apparent upon viewing, the plain view doctrine applied.[20]

            The Seventh and Ninth Circuits have also recently addressed this same issue. The Seventh Circuit ruled that a large number of files containing images of child pornography—although found while executing a search warrant for evidence of voyeurism—were admissible because they were found as a result of a proper search for evidence of voyeurism.[21] The Seventh Circuit, however, did find that four images that were flagged by software typically used to find child pornography were inadmissible.[22] Further, it cautioned that warrants should describe with particularity the evidence to be seized and searches should be narrowly carried out to seize only that.[23] The Ninth Circuit has more liberally construed the Fourth Amendment rights to individuals during digitally searches than the Fourth or Seventh Circuits. The Ninth Circuit requires police to take several procedure steps before opening files that may contain evidence of crimes other than those specified in the warrant. [24]