Category Archives: Investigations and Evidence

Rights ch 11, Short Course ch 17

Is DNA more like GPS or like fingerprints?

On February 2nd, David Savage reported on an upcoming Supreme Court oral argument regarding the 4th Amendment search and seizure clause.[1]  The case deals with the standard procedure, practiced in 28 states and by the federal government, to take DNA samples of most individuals arrested for serious crimes.  The case before the Court is Maryland v. King.[2] King was arrested for rape, among other charges, in Maryland in 2009.  His DNA profile also matched a case from 2003 involving the rape of two pre-teens.  King was convicted of all three crimes.

 

King’s argument deals with probable cause.  He was arrested for one crime, but there was no evidence or suspicion that connected him to the earlier crime.  Therefore, the search and seizure of his DNA for the purposes of comparison to all other DNA is unconstitutional.  Commentary on the case links the question presented to the GPS case from last term, US v. Jones.  There the Court ruled that the placement of a GPS device on a suspect’s car was a search that violated the 4th amendment.  Now in Jones, Scalia says, “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.”[3]

 

It seems pretty clear that if a GPS device placed on a car requires probable cause and a valid warrant due to the infringement of privacy and the amount of details of life that can be gathered, certainly the taking of DNA evidence falls squarely within that precedent.  DNA provides more information than any other physical evidence from a person.  It provides medical information, it provides familial information, and it is unique to an individual.  Savage quotes a DNA law expert as saying, “If you are arrested for a drug crime, that doesn’t mean the police can walk into your house looking for evidence of other crimes.”[4]  Again, if Jones is the controlling precedent, then the privacy interests will clearly outweigh the interests of the state.

 

Yet, there are several precedents that would support the practice of taking DNA samples after arrest.  First, providing DNA evidence is no more invasive than fingerprinting and the Court noted in Hayes v. Florida[5] that “None of the foregoing implies that a brief detention in the field for the purpose of fingerprinting, where there is only reasonable suspicion not amounting to probable case, is necessarily impermissible under the Fourth Amendment.”  And, fingerprint evidence can also be compared to outstanding cases and provide a match for the purposes of connecting one crime to another without suspicion.  We do not consider such comparisons of fingerprints to databases to be searches that run afoul of the constitution.

 

While DNA evidence does contain a great deal of information, the purpose for the collection and the use is the same as fingerprinting.  The scope of the search and the invasiveness of the seizure are quite similar.  In 1988, the Court also allowed the seizure and subsequent search of the curbside trash left by narcotics traffickers.  Despite Brennan’s protest from the dissent that our trash contains a great deal of personal information about our habits, our medical condition, and “intimate details of Greenwood’s private life…” , the Court ruled in CA v. Greenwood that you have no privacy expectation over your trash, once placed outside your house and curtilage for pickup.[6]

 

Pundits suggests that cases such as Jones and King will be harder for the justices as they deal with modern technology.  However, the justices can also eschew those arguments by making the analogy of DNA to fingerprints.  For political scientists, it will be informative to see which stimuli (privacy versus law & order) are hit during oral argument.  The framing of the case will likely determine the outcome.


[4] This, however, is not true.  The police can do some searching of home or the area around an arrestee under the many exceptions to the warrants rule.  Any evidence in plain view—evidence of other crimes—is fair game.  They can conduct a protective sweep, Maryland v. Buie, and again evidence in plain view is then admissible.

 

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I ALWAYS FEEL LIKE SOMEONE IS WATCHING ME…

Linda Merola and Cynthia Lum’s new article “Emerging Surveillance Technologies: Privacy and the case of license plate recognition (LPR) technology,” forthcoming in the November/December issue of Judicature[1], brings to mind the 1984 Rockwell song, “I always feel like someone is watching me.”  Merola and Lum examine LPR from the perspective of the community in this article, finding that many individuals are unaware of the technology or its use in their community.  More importantly, respondents to their survey note that the use of this technology would cause some reconsideration of both legal and illegal activities.  We may slow down on a highway knowing that as we pass a camera our license plate is recorded.

And Merola and Lum inform us that more than just our license plate number is recorded.  Usually four different data points are collected: the date, the time, the GPS location of the vehicle, and the license plate number.  These data can then be stored or erased.  Saved data can be “linked with vehicles registered owners via state motor vehicle databases and preserved, thereby creating records with substantial details about citizens’ daily movements…”

Clearly 4th amendment search and seizure questions are bound to arise with the greater use of this technology.  Unlike the GPS beeper at issue in U.S. v. Jones[2], there is no trespass to place a device on a vehicle.  It is simply a series of cameras, faster than the naked eye and by Jones there would be no constitutional violation.[3]  As Merola and Lum note, lower courts have been less amenable to a privacy claim when the information could be gathered by police observation.  License plates must be visible while on the road, and this settles the question.  The concurring opinions using the Katz standard, though, would likely find a violation of the reasonable expectation of privacy.

While the 4th amendment arguments are intriguing, another of their findings in this article suggest that LPR, and likely similar technologies, may chill 1st amendment rights.  Using LPR, police may be able to track movements through a given day.  What meetings are attended; what commercial establishments are visited; or what protests you choose to attend.  In this way, LPR and similar technologies go awry of Watchtower Bible & Tract Society of NY, Inc et al v. Village of Stratton.[4]  In Stratton, the Court nullified a village ordinance that required all canvassers to register with the village, and receive a permit.  Challenged by the Watchtower congregation of Jevovah’s Witnesses, the Court determined that the freedom of religion and freedom of speech included anonymous speech.  The registration ordinance required identification of the canvassers.

License Plate Recognition technology, and its similar counterparts like facial recognition software, could achieve the same ends as the registration ordinance or the McCarthy hearings.  Individuals can be “outed” in their beliefs, their habits and proclivities, and their associations without every saying a word.


[1] Volume 92 Number 3.

[3] Although we should remember that in Kyllo v. US 533 US 27 (2001), the Court disallowed a warrantless search via thermal imaging device because the device was not generally in public use and allowed peace officers to ‘see’ inside the home.  Of course, this search takes place in a home, not on the public roads in a vehicle.

[4] 536 US 150 (2002)

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Tracking or Tracing?

On March 31, the New York Times reported that some police departments are routinely using ‘cell phone tracing’ in their investigations, and many are doing so without obtaining a warrant beforehand.[1]  The Time then states that:

The issue has taken on new legal urgency in light of a Supreme Court ruling in January finding that a Global Positioning System tracking device placed on a drug suspect’s car violated his Fourth Amendment rights against unreasonable searches.

Is this supposition accurate?  Given the narrow reasoning that held in the Jones[2] case, there is clearly room for distinguishing between ‘cell phone tracing’ and ‘GPS tracking.’  Justice Scalia, writing for the Court, sticks close to his beloved originialism  in his opinion:

“It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted…”

The crux of the case, then, for Scalia was the physical trespass alluding to early Fourth Amendment doctrine prior to the Warren Court’s broadening to reasonable expectations of privacy in Katz v. US,[3] “… Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”

For Alito, the issue was different.  The trespass in this case was inconsequential.  His main concern, or so it seems from his opinion, is the prolonged use of the device.  He writes:

“First, the Court’s reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation)…By contrast, if long-term monitoring can be accomplished without committing a technical trespass — suppose, for example, that the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car — the Court’s theory would provide no protection.”

Under either of these theories, the widespread use of cell phone tracing reported by the Times does not seem constitutionally problematic.  Police departments may be using the devices? freely, but if they are not attaching them nor following someone’s phone from tower to tower for an extended period of time, neither Scalia nor Alito should be against the procedure.

It is questionable whether even the broader ‘reasonable expectation of privacy’ argument would be relevant? here either.  Any cell phone user is aware that the phone knows your location; the phone lets you know when you are out of your network’s range or resets automatically when you change time zones whether you are making calls or not.  The point of a cell phone is that you can call from anywhere and do not have to enter a building or booth to do so.  In Katz, it was the act of closing off the booth as well as paying for a direct connection that led to his reasonable expectation of privacy.  A cell phone signal that bounces tower to tower wirelessly, that seems easy to intercept even innocently, seems to be the antithesis to the phone booth in Katz.  If this argument is sound, then there seems to be no safe harbor left under the Fourth Amendment for cell phone users wishing to keep their locations private.  Perhaps it is a good thing that the Times reports that several state legislatures as well as Congress are considering legislation limiting this procedure.

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Drug testing and welfare payments

The progressive website Think Progress claims that a law enacted in Florida last June is unconstitutional.  The law requires that Floridians receiving public assistance must take a drug test.  If they test positive for illicit drug use, then the recipient of government assistance will not receive payments for a year (or until they sought and received treatment).  After a second positive test, the individual will be barred from receiving benefits under TANF (Temporary Assistance for Needy Families) for three years.  The costs of the tests will be reimbursed to those welfare recipients that are found to be drug-free.[1]

Think Progress and the ACLU claim that the law violates the 4th Amendment.  –They argue that the drug tests amount to  suspicionless searches and thus cannot stand under the precedents of Chandler v. Miller 520 US 305 (1997)[2], Vernonia School District 47 v. Acton 515 US 646 (1995)[3], and Skinner v. Railway Labor Executives Association 489 US 602 (1989).  This string of cases all deal with drug testing in various situations (candidates for state office; students involved in extra-curricular activities; and railway employees involved in accidents, respectively) and set the standard for such searches.  As stated in Skinner:

In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. 489 US 664

Think Progress links to two lower court cases dealing with ‘similar’ laws.  One is a case very similar to Chandler that struck a law requiring individuals standing for public office to undergo drug testing[4]; this case, and Chandler are readily distinguishable.  The drug testing in these two cases was imposed without any showing of ‘special needs’.  Rather in both instances, the interests were more a general notion of fighting the drug problem.

The other is a case out of the Court of Appeals for the Sixth Circuit.[5] The District Court found that Michigan’s interest did not create a special need under Supreme Court doctrine.[6]  In an en banc decision, the court split evenly on the question of whether Michigan’s law requiring drug testing for welfare eligibility is constitutional; therefore, the district court opinion was upheld.  No opinion was published in this case.

As in the Michigan case, Florida’s interest in adopting their law is to prevent taxpayer monies from supporting illegal drug use; in Michigan, the legislature made a specific connection between drug abuse and the ability to move off welfare.  Based upon this analysis, the claims of Think Progress about the blatant unconstitutionality of the law are hyperbolic, and the question remains open whether such suspicionless searches violate the 4th Amendment.

Florida and Michigan’s laws did remind me of this line of 4th Amendment cases, but it also raises a question of government powers.  TANF is a federal spending program and the monies are distributed at the state level.  Additionally, states have some authority to regulate the receipt of these monies by individuals.  As recipients of the state’s generosity, those applying for assistance must meet several requirements including age, residency, creation of and adherence to a household budget, and transparency regarding all sources of income.  Why is it unreasonable or unconstitutional for Florida to add an additional requirement of a fairly nonintrusive (according to the Court) drug test?  The Court has previously ruled that the power to spend at the national level contains the power to place restrictions on the monies.  In South Dakota v. Dole 483 US 203 (1987), Chief Justice Rehnquist notes that:

[T]he “independent constitutional bar” limitation on the spending power [of the federal government] is not, as petitioner suggests, a prohibition on the indirect achievement of objectives, which Congress is not empowered to achieve directly.  Instead, we think that the language in our earlier opinions stands for the unexceptional proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional.[7]

Equally germane is National Endowment for the Arts v. Finley 524 US 569 (1998).[8]  Here the NEA did not fund several performance artists based upon its reading of the establishing legislation; that legislation has a clause that requires the NEA to consider standards of decency when allocating grants.  Justice O’Connor writing for the Court:

Finally, although the First Amendment certainly has application in the subsidy context, we note that the Government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake.

Is the Florida legislature less empowered to set spending priorities and dictate requirements for funding than the Congress?

Of course, the next line in O’Connor’s opinion is “So long as legislation does not infringe on other constitutionally protected rights, Congress has wide latitude to set spending priorities….”  If these suspicionless searches are indeed within the test set by the Court in Skinner and broadened in Vernonia, and it seems there is at least a reasonable argument that they are given my analysis and the even split in the Sixth Circuit, then states should have the power to impose requirements on the receipt of state assistance of any kind.

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Law and Politics

On July 20, the Transportation Security Administration (TSA) announced that it would no longer utilize controversial body scanners[1] to screen passengers prior to boarding domestic and international flights in the United States.  These screeners use imaging technology to create an image of the passenger without clothing to determine if any contraband items are secreted upon the person.[2]  The scanners were first deployed in 2007 and are in use across the country.

A controversy surrounds the image created by the scanners and its potential infringement on privacy and fourth amendment rights.  These issues have been covered by many including Wired’s Threat Level Blog.[3]  As Wired reported, the Electronic Privacy Information Center challenged the use of these scanners in federal court. The case dealt with several issues of procedure under the Administrative Procedures Act (APA) 5 U.S.C. §553 as well as claims under the Video Voyeurism Prevention Act 18 U.S.C. §1801, the Privacy Act, 5 U.S.C. §552a and the Fourth Amendment.

The case was decided on July 15, 2011.  The TSA won the case.  The Court of Appeals for the District of Columbia ruled that the TSA could use these scanners.

The Fourth Amendment claim was a slam-dunk for the government.  Judge Douglas Ginsburg (appointed in 1986 by Ronald Reagan) utilized precedent to classify the TSA search as an administrative one; thus, the determination of whether such searches violate the Fourth Amendment calls for a balancing test.  In this case, the government would only need to show that the test is “needed for the promotion of legitimate government interests” in order to outweigh an intrusion on an individual’s privacy.  This balancing test favors the government’s interests since it is easy for the TSA to show that metal detectors are insufficient to identify liquid or powder explosives or other similar contraband on a person.

Five days after receiving a clear victory on the use of these scanners, the TSA announced that it will change software so that the scanners only produce a generic outline of a person—something that will look more like a cookie cutout than the actual individual inside the scanner.  Why would the TSA change its policy so quickly after securing a victory for its policy—a victory that the agency and the Department of Homeland Security fought for before the Court of Appeals?

I can think of two reasons, separate from any technical report or advance in technology for this seemingly contradictory behavior.  First, the reality is that law is not divorced from politics and a legal victory may not suffice for the purposes of governing.   While the Court of Appeals did approve the use of the technology, the court of public opinion was not necessarily in agreement.  Regardless of the case outcome, the public viewed the procedure as intrusive.  Soon after implementation there was a “national opt-out day” at all national airports.  And as ABC reported in November of 2010[4], support for the TSA procedures dropped precipitously from the beginning of that month as information about the images produced became available.[5]  Additionally, support dropped even more for those surveyed that also fly at least once a year.  The Texas Legislature in January of 2011 tried to pass a law prohibiting some TSA pat-downs and a New York legislator introduced similar legislation in late 2010.[6]  In other words, while the judges of the Court of Appeals for the District of Columbia, the second most prestigious court in our nation, may not find a Fourth Amendment violation when balancing the rights of the individual versus the interest of the government, the public will not necessarily come to the same conclusion.  And the court ruling simply could not provide the administration with enough cover to continue with this unpopular program, particularly when an alternative exists.

Second, although interest groups take cases to court in hopes of a judicial victory, even a defeat can serve important purposes and goals. The challenge in federal court was one prong of a multifaceted interest group campaign to change the TSA policy.  First, the Electronic Privacy Information Center received publicity and kudos from its members for fighting the policy as a result of their challenges to the policy..  Additionally, the case increased the issue’s visibility. Studies show that interest groups use multiple tactics and the use of the courts is often part of a larger strategy.  Seen this way, the court case was been a one means to an end.  EPIC kept the pressure on the TSA and the administration for several years—ever since the introduction of the technology; they lost in court but they won in policy.   The courts are only part of a very complex political system and the victories studied in constitutional law must be placed in the context of the time period and the decisions of the other branches of government, the states, and the people.  Legal victories can create or alter policy; they cannot fully shield politicians and bureaucrats from the pressure exerted by interest groups or from the discomfort those policies create among the public.


[1] There are two different types of scanners.  One that uses millimeter wave technology and one that uses backscatter technology.  The former produces a more defined image of the naked body although facial features are blurred.  The latter also blurs the face, and produces a less refined view of the individual.

[2] The TSA provided an alternative for those wishing to avoid the scanners—a physical search/pat down by a TSA officer.  Those few that took the alternative were equally offended by that procedure.

[3] http://www.wired.com/threatlevel/2011/07/ts/  last accessed on August 11, 2011.

[5] In fact, Gizmodo broke a story that over 35,000 pictures from the scanners were leaked.  See http://gizmodo.com/5690749/these-are-the-first-100-leaked-body-scans.

[6] The bills did not pass the legislatures so we can elide the clear constitutional problems with pre-emption here.

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