The Fourth Amendment and Modern Technology
In this presentation, the speaker will (1) discuss the legal history of the Supreme Court’s Fourth Amendment jurisprudence concerning modern technology, beginning with two landmark cases in the 1920s; (2) address the Court’s Fourth Amendment cases concerning modern technologies in the recent past (since 1970); and (3) conclude by offering some thoughts about how the Fourth Amendment may or may not apply to some very recent technologies that haven’t yet been addressed by the Supreme Court.
Brent Newton: Welcome to The Fourth Amendment and Modern Technology by Quimbee. I'm Brent Newton, a Quimbee senior author, as well as an adjunct law professor, who teaches and writes about constitutional criminal procedure issues.
This presentation includes course materials, which consist of slides, detailed presenter notes, and some reading materials. I hope you enjoy this presentation on how the Fourth Amendment applies in the context of modern technology.
When I first learned about the Fourth Amendment in my law school's criminal procedure course, way back in 1990, I felt pretty tech savvy at that point in my life. I owned a Radio Shack personal computer with a Word processor, and also had a dial up modem that could connect my PC to early versions of Westlaw and Lexis. I owned both CD and VHS players. One of my classmates who moonlighted as a stockbroker, even had this cool new device that he called a mobile phone, which resembled the big walkie-talkies you see in World War II movies.
But if you had asked me in 1990 to define any of the following things, smartphone, email, internet, the cloud, metadata, big data, GPS, DNA test, or drone, I either would not have had a clue, or would've only had some vague idea about such things, that's because those technologies either didn't exist yet or were only in their infancy and were not understood outside of a small community of technology experts. Fast forward three decades. Today, virtually everyone is not only very familiar with these technologies, but also actually uses them or sees other people using them on a regular basis. Because of their widespread use, these technologies and many other modern ones are not surprisingly used by people to commit a wide variety of crimes. As a result, law enforcement officers search for evidence of crime committed by the use of these technologies. And officers also sometimes use advanced technologies of their own to search for evidence of crime in a wide variety of contexts, old fashioned and modern.
Although it was written 230 years ago when the Industrial Revolution was just getting off the ground, the Fourth Amendment is still quite relevant to these law enforcement searches as we shall see. In addition to protecting people's bodies, their persons, the Fourth Amendment also protects people's homes, papers and effects, persons, homes, papers, and effects. Those are the four words in the Fourth Amendment.
Technology, both that used by criminals and police officers can implicate one or more of the four categories protected by the Fourth Amendment. The Supreme Court repeatedly has cautioned that quote, the judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. That's from City of Ontario, California versus Quon 2010 decision.
As a result, as we'll see later when we discuss the leading cases, the court has generally taken baby steps in applying the Fourth Amendment to technological advances. For that reason, there often is a good deal of uncertainty about how the Fourth Amendment applies to a new technology. Until the Supreme Court eventually renders a decision concerning that new technology often decades after the advent of a particular technology. But with the rapidly changing pace of technology, the court's cases concerning the Fourth Amendment and modern technologies often feel outdated relatively soon after being decided.
Before we delve into the court's decisions, it's important to first take a step or several steps actually back and engage in a broader view of the Fourth Amendment jurisprudence of the Supreme Court, in order to put the Fourth Amendment cases on modern technology into context. The court's Fourth Amendment cases can be broken down into four main categories, which are best listed in a linear manner in terms of how the issues arise in real world litigation. First, there are cases are addressing the threshold question of what qualifies as a "search" or a "seizure" under the Fourth Amendment. If something doesn't qualify as a search or a seizure, then the Fourth Amendment's normal requirements, including probable calls and a warrant simply don't apply.
Second, cases addressing exceptions to the Fourth Amendment's general warrant requirement. There are many such exceptions. Common examples include the exigent circumstances exception and the plain view exception. Third, cases addressing what constitutes probable cause or reasonable suspicion. These quanta of proof are low. Although, they do require more than a mere hunch by a police officer. And forth, cases addressing what remedy, if any exists when a Fourth Amendment violation has occurred, meaning the exclusionary rule in criminal cases and money damages, or an injunction in civil rights cases in which a Fourth Amendment issue is raised.
The Supreme Court's cases addressing how the Fourth Amendment applies to modern technology usually have concerned the threshold issue of whether a search has occurred. Although, some cases have addressed whether an exception to the warrant requirement applies. Relatively, few Fourth Amendment cases, the Supreme Court and lower court cases, both have addressed modern technology in the context of whether probable cause or reasonable suspicion exists, or whether there's any kind of remedial issue.
To better understand the court's cases addressing the threshold issue of whether a Fourth Amendment search has occurred. Let's briefly address the primary legal principles from the court's Fourth Amendment cases, generally.
The court has recognized two main types of searches. First, searches that implicate people's private interests, and second, searches that implicate people's property interests. So, property and privacy are the two big issues under the fourth amendment.
Compare Katz versus United States, the leading case on privacy and the much more recent decision of United States versus Jones, 2012 decision concerning property. That's the leading case on the Fourth Amendment and property interests. In the leading privacy interest case, Katz, decided back in 1967, which we'll discuss more below, because it just so happens to be one of the leading cases on the Fourth Amendment and modern technology. The court held that the Fourth Amendment protect a person's "reasonable expectation of privacy." That means that a person not only subjectively possesses an expectation of privacy in something, but also possesses an expectation of privacy that society recognizes as being worth protecting as determined by the Supreme Court on behalf of society. Without such an objectively reasonable expectation of privacy, a person's mere subjective expectation of privacy doesn't receive protection under the Fourth Amendment.
In the leading modern property interest case, United States versus Jones decided in 2012, the court held that the Fourth Amendment independently protects a person's property interests either in personal or real property, even if the person doesn't possess a reasonable expectation of privacy in that property.
The key feature of a Fourth Amendment property interest violation is a law enforcement officer's physical trespass, either of real property or personal property. As we'll see, the court's property interest tests concerning searches doesn't typically come into play regarding modern technologies because such technologies almost never involve a physical trespass, as opposed to what some have called a digital trespass. Therefore, as we'll see, the court's privacy interest jurisprudence is what really matters in the modern technology cases.
In the remainder of this presentation, I'd like to apply the legal principles that we'll be discussing to a hypothetical defendant, whom will call Steve Hacker, who's pursued in a variety of different scenarios by a law enforcement officer, whom will call Susan Techie. So, Steve Hacker is our defendant or our suspect. And Susan Techie is our law enforcement officer.
So, in terms of a road map, during the rest of this presentation, I will first discuss the legal history of the Supreme Court's Fourth Amendment jurisprudence concerning modern technology, beginning with two landmark cases in the 1920s. Second, address the court's Fourth Amendment cases concerning modern technologies in the recent past since 1970 or so. And three, conclude by offering some thoughts about how the Fourth Amendment may or may not apply to some very recent technologies that haven't yet been addressed by the Supreme Court.
As background, let's discuss some Supreme Court decisions in the first half of the 20th century, when the court grappled with how the Fourth Amendment applied to what were then brand new technologies. Two of the greatest technological innovations in the late 19th and early 20th centuries, which dramatically changed life in the modern world were telephones and automobiles. Not surprisingly, soon after their inventions, criminals began using both technologies.
These two technologies were widely used in particular during the Prohibition era, when the United States tried to eradicate the use of alcoholic beverages from 1919 to 1933. Law enforcement officers, warrantless searches of suspected bootleggers' cars and telephones led to two of the leading Supreme Court decisions addressing the Fourth Amendment in the early decades of the 20th century.
The first case is Carroll versus United States, 1925. In that case, police officers had probable cause that Carroll was a bootlegger, who was driving a car containing liquor. They stopped his car without a warrant and extensively searched inside of the car, finding dozens of bottles of whiskey. Carroll moved to suppress the whiskey as tainted fruit of an unconstitutional, warrantless search of his car. He lost in the lower courts, and the Supreme Court granted review. In rejecting Carroll's argument, the court created what has become known as the "automobile exception" to the Fourth Amendment's warrant requirement.
The court held that because automobiles are readily mobile and police officers may not have time to obtain a search warrant before the car drives off, along with any contraband or evidence of crime inside it, the warrant requirement doesn't apply to such a search of an automobile, when officers possessed probable cause that illegal contraband or evidence of crime was located inside the car. This is an early version of what became the exigent circumstances exception to the warrant requirement.
The next case in the twenties is Olmstead versus United States. Olmstead was decided in 1928. In Olmstead, without obtaining a search warrant, federal revenue agents literally tapped the telephone wires, literally cut into the wires and tapped them. That's where the expression comes from. They did that on the homes of Olmstead and some of his fellow bootleggers, or they did it on the wires, telephone wires outside of their homes. But the officers tapped the wires outside of the property line of the residences, so they never physically trespassed on the men's real property.
Also, without a search warrant, the agent secretly listened in on the men's conversations, which concerned obtaining alcoholic beverages from Canada. The lower courts concluded that there was no "search" within the meaning of the Fourth Amendment in that case. The Supreme Court granted review and held that the warrantless wire tapping was not a search under the Fourth Amendment cause there was no physical trespass of the men's property. The fact they tapped the wires outside of the property line was dispositive.
Now, Justice Brandeis dissented in Olmstead. He contended that the Fourth Amendment protected privacy and not merely property rights. He famously stated, "The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails."
Under the court's prior Fourth Amendment precedent, a warrantless search of someone's mail had been deemed unconstitutional because it involved a physical trespass of a sealed letter, belonging to the recipient. That was in a case called Ex parte Jackson in 1877. Carol and Olmstead strongly indicated that the Supreme court in the early 20th century didn't view the Fourth Amendment, which had been adopted in 1991 as applying to any modern technologies. Most significant was Olmstead, which required a physical trespass for the Fourth Amendment to apply at all.
Even after prohibition was repealed in 1933, and technologies were advancing rapidly because of the emerging war effort, the Supreme Court continued to require a physical trespass before it would find a Fourth Amendment violation. For instance, in 1942 in Goldman versus United States, the court upheld police officers warrantless use of an electronic sound enhancement device called a detective phone, that allowed officers to listen to a private conversation in Goldman's office, through a wall from the office next door. Because there was no physical trespass using the device, the majority found no Fourth Amendment violation had occurred.
In dissent, Justice Murphy, Frank Murphy argued that Olmstead's physical trespass requirement was outdated and should be abandoned. Justice Murphy argued that, "The conditions of modern life have greatly expanded the range and character of those activities, which require protection from intrusion by government officials, if men and women are to enjoy the full benefit of that privacy, which the Fourth Amendment was intended to provide." So, like Justice Brandeis, Justice Murphy in dissent is focusing on privacy, not property.
But it wasn't until the next generation when American society was evolving into one that placed as much or more importance on individual rights as property rights that the Supreme Court finally overruled Olmstead to the extent that it required a physical trespass of a person's real or personal property for a Fourth Amendment search to occur.
In Katz versus United States, 1967, the majority declared for the first time that "the Fourth Amendment protects people, not places." In Katz, FBI agents, without a search warrant placed a bug on an electronic listening device, somewhat similar to the detective phone used in Goldman, on the outside of a public phone booth used by Katz when he placed illegal bets in violation of federal law, prohibiting interstate gambling. The prosecution later used that monitored conversation to convict Katz of interstate gambling. The Supreme Court for the first time, recognizing that the Fourth Amendment protects a person's reasonable expectation of privacy, concluded that the warrantless bug of the closed payphone used by Katz had violated his Fourth Amendment right to be free from an unreasonable search.
Katz dramatically changed the course of the court's Fourth Amendment jurisprudence. For the very first time privacy mattered. So long as society is gauged by at least five members of the Supreme Court, deemed a person's expectation of privacy in a particular setting to be "objectively reasonable."
Soon after Katz, the court applied its holding to law enforcement officers warrantless wire taps of people's private telephones. So, expressly overruling Olmsted. Those cases were Berger versus United States and United States versus US District Court, commonly called the Keith Case because the last name of the defendant, the real party and interest was Keith. In these cases as will be discussed at the end of this presentation, the court specifically left open the question of whether a "national security" exception to the Fourth Amendment's warrant requirement exists for warrantless wiretapping.
So, what I want to do now is I want to talk about current legal developments in terms of the Fourth Amendment and modern technology. From 1967 into the present time, great leaps in technology have occurred, both in terms of technology used offensively by criminals and technology used defensively by law enforcement officers.
In our remaining time, I will discuss the leading Supreme Court cases applying the Fourth Amendment to such technological advances. In all of these cases, the court has applied the reasonable expectation of privacy tests first announced in Katz. As I've noted, the court's separate property interest jurisprudence, which was reinvigorated in 2012 in the Jones case, simply that case is not relevant. That principle is not relevant to the court's modern technology decisions, because the kind of modern technology that we're talking about invariably does not of any kind of physical as opposed to digital or electronic presence.
Before discussing each of the Supreme Court cases, I'll provide a hypothetical scenario involving our fictional defendant, Steve Hacker, and our fictional police officer, Susan Techie. We'll then see how Hacker fares under each of the court's cases. Assume each hypothetical case is completely independent from the others, and unless I tell you otherwise.
Let's start with a scenario in which Hacker has telephone calls and in person meetings with John [Perlina 00:20:11], a fraudster, who illegally skims people's credit card and bank card numbers using a device at ATM machines and at credit card terminals at retail stores. Hacker asked Perlina to obtain several dozen card numbers for Hacker, for which hacker would pay Perlina, $50 per account number.
It turns out Perlina recently had been arrested by Officer Techie and was secretly cooperating with Techie. Without getting a search warrant, Techie placed a secret recording device on Perlina's telephone and on his body, which recorded everything that Hacker had said. Based on the warrantless recordings, Techie got a search warrant for Hacker's home. When she executed the search warrant, she seized a great deal of incriminating evidence used to later charge Hacker with credit card fraud. Hacker moved to suppress that evidence on the ground that the warrantless recordings of his conversations with Perlina were tainted fruit of an unconstitutional warrantless search.
How should the trial court rule on his motion? The court should deny it. The court should deny it because of the United States versus White, a 1971 Supreme Court decision, in which the court held that a defendant has no reasonable expectation of privacy in private conversations with a person who turns out to be a confidential informant, who is wearing a wire.
So, White is distinguishable from Katz. Katz involved a private conversation between two people who were monitored without their knowledge and consent by law enforcement officers, who didn't have a warrant, using a bug on the telephone. That's different from what happened in our scenario and in the actual case of White, where one of the parties in the conversation Perlina was actually working for the government and agreed to wear a recording device, and agreed to put a recording device on his phone when he spoke with Hacker. So, for Katz to apply both the parties to the conversation have to be unaware, unlike in White, where one of the parties to the conversation was aware.
In our next scenario, let's suppose Hacker made numerous phone calls and arranged to buy credit card skimmers from Perlina and several other fraudsters. Officer Techie, suspected Hacker was involved in skimming, but hadn't yet developed probable calls to search or arrest Hacker. Therefore, she couldn't yet get a warrant. So, she asked the phone company to provide a record of all of Hacker's incoming and outgoing phone calls. These records did not provide any information about the content of the calls, rather the information merely showed the phone numbers of the people whom Hacker called and whom had called Hacker. After getting these phone records, Techie learned that Hacker had called six people, including Perlina, known to Techie as skimmers.
Based on that information and also information provided by a confidential informant, Officer Techie obtained a search warrant for hacker's home. When she executed the warrant, she seized a great deal of incriminating evidence used to later charge Hacker with credit card fraud. Hacker removed to suppress that evidence on the ground that the information that techie had obtained from the phone company, the record of the calls, the numbers, amounted to an unconstitutional warrantless search.
How should the trial court rule on that motion? The court should deny it. And to do so based on a case called Smith versus Maryland. Smith, a 1979 Supreme Court decision involved the use of a device called a pen register, also called a trap and trace device that is very commonly used in the modern era by law enforcement. It is a device that will tell police, and this is of course is with the cooperation of the phone company, it will tell police the numbers that have called a particular number and the numbers that that particular number has called. It doesn't talk. It doesn't reveal any information about what was said. So, it's not wiretapping. It's not like Katz.
The Supreme Court in Smith said that the use of that kind of device was not a search under the Fourth Amendment, because a person doesn't have a reasonable expectation of privacy in the record of what calls are made to his or her phone number and what calls they call out in terms of just the phone numbers and the length of the calls and so forth. Now, Smith is an application of a broader principle previously announced by the Supreme Court called the third party doctrine. And was announced in earlier cases, US versus Miller and California Bankers Association versus Schultz. Miller was a 1976 case. And Schultz was a 1974 case. They both discussed bank records. But the same principle is applicable to phone records.
When you deal with a third party, and it's usually a business, so a phone company, a credit card company, a bank, a hotel, where you stay, the records generated by that company, ordinarily are things that you have no control over, the Supreme Court reasoned, and that you've already given them up to a third party who doesn't work for law enforcement, the phone company or the bank, or the hotel, or whoever. So, in those situations, you have no reasonable expectation to privacy in those records. And it doesn't violate the Fourth Amendment for police without a warrant to get that information from the companies. Now, of course, the companies can demand a warrant and may or may not be able to prevail there. But the key takeaway way here is that the customer doesn't have the ability to complain, if the company gives over those records to law enforcement without a warrant.
We'll come back to the third party doctrine later. It was narrow to a small degree in a more recent case.
In our next hypothetical, hacker was inspired by the TV show, Breaking Bad, to expand his criminal activities from fraud and theft to making illegal methamphetamine. He learned that if he acquired a chemical called methylamine, itself illegal chemical, that if he got that together with the other chemicals used to make methamphetamine, he could produce copious amounts of meth cheaply.
Hacker arranged to buy a large container of methylamine from a local chemical supply company. Officer Techie knew that local meth dealers were obtaining methylamine from these kind of companies. So, she arranged with the company in Hacker's case, she arranged with that company to place a small radio controlled tracking device into the container of methylamine that Hacker purchased. Techie did not have a warrant authorizing her to do so.
When Hacker bought the container from the company and placed it in his car, it enabled Techie to follow him from a distance using a device that picked up the signal, emitted from the radio controlled tracker in the container. Techie followed Hacker's car to a mobile home in a remote location, where Hacker parked his car and took the container of methylamine inside. Techie learned that the Mo home was owned by a man named John Crank, a person Techie knew to be a meth dealer.
So, using the information that she had obtained by using this radio tracking device that monitored the location of the little device that she had put inside the container with the chemicals, Techie obtained a search warrant for the mobile home. When she and her fellow officers executed the search warrant, they discovered Hacker inside, cooking meth using the methylamine. She arrested Hacker, who was charged with manufacturing a controlled substance. Hacker moved to suppress the evidence on the ground that the information that Techie had obtained using the tracking device was an unconstitutional warrantless search.
How should the trial court rule on this motion? The court should deny it. The Supreme Court has decided two cases that specifically have dealt with radio controlled tracking devices like the one used in our hypothetical. Those two decisions are United States versus Knotts, which is a 1983 decision and United States versus Karo, a 1984 decision.
Knotts and Karo, both involved the same scenario that we have dealt with in our hypothetical. A law enforcement officer puts a radio controlled device, a honing device into a drum of chemicals that drug dealers were going to buy legally to then illegally make drugs. And the cops followed the car driven by the drug dealers when they put the drum of chemicals in their car.
So, in both those cases, the Supreme Court said monitoring people on the roads, police officers, warrantless, monitoring suspects on the roads by tracking them with these radio controlled devices was not a search because people do not have a reasonable expectation of privacy in their movements on the public roads. In other words, cops can track them without devices. Cops can therefore track them with devices. Now, this was back in the eighties. It's before GPS. We're going to talk about GPS later. The radio control devices are not GPS. They do not allow for that kind of 24/7 monitoring. And within a set number of feet, the way that a GPS monitor can do it. These were old fashioned radio controlled devices.
Now, in the Karo case, although the court upheld the warrantless tracking of Karo using that kind of device on the public roads, the moment the police officers used the radio controlled tracking device to determine whether the chemicals had been taken inside, that's different, because in that situation, it's the home, not the car being monitored.
So, in our case, Hacker, in our hypothetical, Hacker was simply tracked on the roads and then Techie witnessed him with her own bear eyes, walking into the house with the drum of chemicals. In Karo, the officers didn't see the suspect move the chemicals into the house, because the person drove into their garage and closed the garage door. Once that person drove away, the officers then tracked the car and didn't find any kind of beeping. So, they went back and looked at the house, and sure enough, there was a beeping from the house. So, they detected what was going on inside the house. That part of the search, the Supreme Court held in karo was unconstitutional, but tracking people on the public roads is not.
So, in our next scenario, Hacker decides to switch to growing marijuana in a state that has not yet made it legal. So, he decides to move from manufacturing meth, to manufacturing marijuana. He bought a rural home and he erected a tall privacy fence around the backyard, and grew marijuana plants there. And people couldn't see the marijuana plants because the fence was so high that it was done privately in the confines of the backyard.
Officer Techie, without obtaining a search warrant, used a police airplane to fly over Hacker's backyard, to be able to look down and see what he was doing from an altitude within navigable airspace, as recognized by the Federal Aviation Administration, the FAA, which is at least 500 feet above the ground. Officer Techie looked down into the enclosed area on Hacker's farm and took photographs using her camera. The photos clearly depicted what appeared to be marijuana plants. Officer Techie used the photos together with information provided by a confidential informant to obtain a search warrant for the property.
After she and her fellow officers executed the warrant, they seized hundreds of marijuana plants, and other evidence related to drug dealing from Hacker's home. She arrested Hacker who was then charged with manufacturing or growing a controlled substance.
Hacker moved to suppress that evidence on the ground that the information that Techie had obtained by flying the airplane over his fenced in property was an unconstitutional warrantless search. Now, keep in mind, she didn't have a warrant when she flew over the house and looked down, and saw the marijuana. She only got the warrant based upon what she saw without the warrant.
How should the court rule? It should deny the motion. In California versus Ciraolo, spelled C-I-R-A-O-L-O, but pronounced Ciraolo, 1986 decision, the majority of the Supreme Court held that a fixed wing airplane that flies within navigable airspace, according to FAA regulations, which is 500 feet or higher, can fly over anybody's property and look down on it and see whatever they can see from that navigable airspace, even if they're looking down into a protected area, like the curtilage, the backyard of a home enclosed by a fence. So, it's fair game under the Fourth Amendment for an officer flying a plane, 500 feet or higher to look down into the enclosed property, even if that property would be protected from a search on the ground without a search warrant. The court held the same thing in Dow Chemical versus United States, concerning fixed wing airplanes. And that was a 1986 decision.
However, in 1989, in a case called Florida versus Riley, the court split and didn't reach a majority decision concerning the use of a police helicopter to do the same thing that the planes did in these other cases. So, in Riley, the officers weren't able to detect anything from 500 feet or above using an airplane, so they had to use a helicopter. And the helicopter flew below 500 feet. I think it was maybe 400 feet or so. And from that vantage point, they looked down and saw marijuana. The defendant was arrested after the police officers obtained a search warrant based upon that view from the helicopter, which was that without a warrant. They then go into the house and they seize all the drug evidence and the marijuana in the backyard, and so forth.
Riley moves to suppress. He loses. However, when it goes to the Supreme Court, the court goes both ways. Riley loses in the Supreme Court, but the rule they announce actually would probably benefit most people today, most defendants today. What they held was the, well, I shouldn't say they, it was a four, one, four decision, meaning four justices were in the plurality. One justice was a concurring in the judgment only. And then four justices descended. Well, the four in the plurality said that helicopter was in navigable airspace under the FAA regs, end of story because the helicopter can fly really low under the FAA regs, but that was just the plurality.
The controlling vote was Justice O'Connor. So, whenever the Supreme Court can't reach a majority and you have a plurality and a concurring in the judgment only opinion, whichever was narrower is the one that constitute the holding of the Supreme Court. And in Riley, Justice O'Connor was the narrower position. This is what she said, just because the helicopter flew in FAA navigable airspace doesn't end the equation, or doesn't end the analysis. Rather, the court has to decide whether it is rare for a helicopter in that specific location to fly as low as that helicopter did. O'Connor focused on rarity because a person's reasonable expectation of privacy in their airspace is going to be a function of how rare it is for a helicopter to fly that low since there's no 500 foot limit for hell helicopters.
So, O'Connor focused on rarity. And in Riley's case, there was no record one way or the other about whether it was rare for a helicopter to fly that low in his neighborhood. So, he lost under O'Connor's rule. But in future cases, I'm sure that when this is raised, defense lawyers are going to go and get proof of how rare it is for a helicopter to fly as low as it did in that particular case. And if it's anything like my neighborhood and most neighborhoods I've ever lived in, it's rare to have a helicopter fly that low over your home.
So, between Ciraolo, Dow Chemical and Riley, the Supreme Court addressed planes and helicopters flying over people's homes without a warrant, getting information, which is then used to get a search warrant. So, under Ciraolo and the other cases, Hacker loses.
Let's assume that instead of growing mayor marijuana in his backyard, Hacker decided to grow it inside his home instead using hydroponic growing equipment and extensive artificial lighting. Based on an anonymous tip, as well as on electricity records for Hacker's home provided without a warrant by the power company under the third party doctrine, Officer Techie had evidence of excessive power usage that led her to believe that Hacker was growing marijuana inside his house. She parks her car outside of Hacker's home on the street. From that location and without a search warrant, she pointed a thermal imaging device, thermal imaging device at Hacker's home. That device detected excessive heat coming from inside certain parts of the house. Using that information, she got without a warrant, along with the confidential informants tip and the electricity record she got from the electrical company, Techie obtained a search warrant for hacker's home.
When techie and her fellow officers executed the warrant, they seized hundreds of marijuana plants inside. She arrested Hacker who was charged with manufacturing, growing a controlled substance. Hacker moved to suppress the evidence on the ground that Techie's use of a thermal imaging device had been an unconstitutional warrantless search.
How should the trial court rule on his motion? The court should grant it. Finally, Hacker wins a case. He wins because the Supreme Court in a case called Kyallo versus United States in 2001 addressed this very situation, and held that a warrantless use of a thermal imaging device to detect heat coming from within a private home, constitutes a Fourth Amendment search, because a person has a reasonable expectation of privacy in the heat coming from inside their home. Such heat, the court held could detect lawful intimate activities. Heat is not inherently unlawful. And heat is associated with certain private activities. So, the use of a thermal imaging device on a home at least is an unconstitutional search. It needs a warrant for it to be constitutional.
The court also noted that thermal imaging devices, although they're not something that only police officers can obtain, looked on eBay one time, you can get them on eBay, but they're not in common use. They're not like a helicopter or an airplane. They're not something that people expect to be monitoring their homes. So, the combination of the fact it was monitoring something coming from the home, heat, the fact that heat's not inherently criminal and in fact heat can indicate lawful intimate activities. And third, the fact that it was a thermal imaging device that is not used in common society. Most people don't even know what that is. For those reasons, the use of a thermal imaging device without a warrant is an unconstitutional search that infringes on people's reasonable expectation of privacy.
So, what I want to do now is I want to revise a prior scenario, the one in which Officer Techie tracked Hacker's car on the public roads using the radio control tracking device. So, I want to modify this scenario. Let's move into the modern in world, and let's assume that instead of a radio controlled tracking device, Officer Techie used a GPS tracking device. So, she talked with the chemical company and they agreed to let her place a GPS tracking device inside the drum of chemicals. And then Hacker buys the drum of chemicals. He puts it in his car. And thereafter, Officer Techie tracks his car using the GPS device. She doesn't follow it on the public roads, the way that officers in Knotts and Karo did. Rather, she just sits back and lets the computer and the saddle light track Techie, 24/7, everywhere he goes. A GPS device can track you within like five or 10 feet over where you are. So, she was able to tell everywhere his car drove that had that tracking device.
And let's just assume that that tracking device stayed, the drum of chemicals stayed in his car and that she tracked him for an extensive period of time, we'll say 30 days. And she knew everywhere that he drove. Let's say he drove to other meth dealers and sold the methylamine.
So, using that information, Officer Techie got a search warrant to then search his car and his home. Inside his home, she found a meth lab. And she arrested him. And she turned his case over to a federal prosecutor, who charged him with manufacturing meth.
So, in that situation, how would his motion to suppress fair? Would it be granted or would it be denied? Well, it depends on two Supreme Court decisions in terms of the specific facts of the case, but in all likelihood he's going to win. Those two cases are United States versus Jones and Carpenter versus United States. Let's start with Jones.
I mentioned Jones earlier because it's the leading modern case on protecting people's property interests under the Fourth Amendment, apart from their privacy interests. So, Jones was one of these split decisions, although it did have a majority opinion. The five justice majority opinion by Justice Scalia held that a physical trespass is a search, if it leads to information being gained by police officers that's incriminating against a defendant, even if it wasn't something protected under the Katz, privacy doctrine.
However, there were five justices of the nine who filed concurring opinions. One of them, Justice Sotomayor joined Scalia's majority opinion about the property aspect, but then wrote separately about the privacy aspect. She had held or upheld, she stated in her opinion that the Jones's privacy interests were also implicated by the long term GPS monitoring. So, she agreed that the placement of a GPS tracking device on his car was a trespass, but she also said that the 24/7 GPS monitoring of him over an extensive period of time, 30 days, constituted an infringement on his reasonable expectation of privacy.
Justice Alito wrote a separate concurring opinion, joined by three other justices, in which he concurred only in the judgment, unlike Sotomayor did not concur in the opinion of Justice Scalia for the majority. In Alito's concurring in the judgment opinion, he said he disagreed with the property holding of the majority, but that doesn't matter for our purposes. What matters is he said he would find a violation based on Katz. So, he agreed with Justice Sotomayor in her concurring opinion. Meaning five justices believe that the longterm monitoring of the GPS device used on Jones's car constituted a search under the Katz privacy doctrine, but that wasn't the holding of the court. The holding of the court was the property holding, not the privacy holding.
However, in 2018, the court had occasion to finally address what the concurring opinions had addressed in Jones. And in a case called Carpenter versus US in 2018, the court dealt with something very similar to GPS monitoring. It dealt with the monitoring of a cell phone using cell tower records, cell tower records. Every time you use your cell phone, and you walk around anywhere or drive anywhere, it goes from one cell tower to another cell tower, to another cell tower. And they're often, especially in cities located pretty near each other, because they're handling such a volume of calls. So, looking at cell tower records, the police are able to tell where people traveled.
In Carpenter's case, he was a suspect in some robberies. And they used his cell tower records, which were provided by the phone company to enable the police officers to tell whether Carpenter, whether his phone had connected to cell towers near the location of the robbery. So, it was circumstantial evidence, but pretty strong circumstantial evidence, because the cell tower records would tell the police officers precisely when he was by a certain cell tower that was close to the robbery location. So, this was functionally the equivalent of a GPS device. And they used it in Carpenter's case for 30 days or more. And they tracked his movements by the cell tower records provided by the phone company, very similar to the GPS records that were used in Jones.
Well, there was no trespass in Carpenter, because the officers did not place a tracking device on his car the way they did in Jones. You didn't have the physical trespass issue that you had in Jones. So, the court had to address the privacy issue, finally.
The majority in Carpenter adopts the concurring opinions, Sotomayor and Alito as representing five votes on the court. So, it took the concurring opinions and it made them into the majority opinion in Carpenter.
So, between the Jones decisions concurring opinions and the Carpenter majority opinion as of 2018, the Supreme Court has held that long term GPS monitoring or cell tower monitoring of somebody by police, even with the cooperation of a phone company and providing the cell tower records constitutes a search under the Fourth Amendment because people have a reasonable expectation of privacy in their movements over a long period of time, at least when they're being monitored 24/7 in a very specific way. So, they distinguish Knotts and Karo in those cases. Those cases involve the tracking using a radio control device. They weren't nearly as intrusive as a GPS monitoring or a cell tower monitoring.
So, as of 2018, the police officers who want to do this, need a warrant to be able to track people's movement with a GPS device or getting phone company records that use the cell tower locations.
Now, I told you earlier that the Supreme Court had limited the third party doctrine recently, and what they did so in Carpenter. Carpenter limited the third party doctrine regarding phone records of cell towers. So, things like pin registers that simply tell you what the phone numbers are that a number calls, or the numbers that call the number. That's one thing. And bank records, that just tells you what your bank activity was, your financial activity was. That's one thing. But GPS or cell tower, long term GPS or cell tower monitoring is another under the Fourth Amendment.
Now, the court in footnote three in Carpenter said that the long term monitoring of cell towers or GPS tracking has to be at least seven days, or at least they held that's all they were holding at that time, was that if it was seven days or more of monitoring, then it would be an unconstitutional search under the Fourth Amendment under the privacy doctrine of Katz. They left open whether shorter searches could ever be a problem under the Fourth Amendment. So, all we know now is it has to be at least seven days, whether searches using that kind of data without a warrant under seven days is an open question.
All right. So, under our scenario, Steve Hacker, sorry, would likely win if he was monitored for seven days or more by Officer Techie. If he was monitored seven days or less, he would probably lose. So, that is the application of Jones and Carpenter.
I think it's briefly worth mentioning that there's a professor named, Orin Kerr. And Orin Kerr has written a very influential law review article called The Mosaic Theory of the Fourth Amendment. It's in the Michigan Law Review in 2014. And I think it was influential in terms of the Supreme Court's view of this in Carpenter. Basically what Professor Kerr says is up until Carpenter, really Jones, but especially Carpenter, the court had always just concerned itself with discreet searches, "This event happened on this date. This event happened on that date." And for the first time because of modern technology, the court is concerning itself with a mosaic, lots of little pieces that are put together, that officers then use to arrest and prosecute somebody. So, as of Jones and Carpenter, we now have this mosaic view of the Fourth Amendment, which is going to, as we'll talk about later, going to be relevant to other modern technologies.
Finally, let's assume that Techie's use of the GPS device was much shorter than seven days, and that the search warrant she obtained and the subsequent search of Hacker's home were deemed constitutional. After she arrested Hacker, she removed his cell phone from his pocket and decided to search its digital contents. The warrant that she obtained did not specifically authorize her to search Hacker's cell phone. Techie nevertheless took Hacker's thumb and put it on the touch ID against his will. In other words, he wasn't consenting to this. She unlocked his phone, and then she went through his texts and his photos that revealed lots of incriminating information about his drug dealing and his credit card fraud activities. He moved to suppress that information that she got from the phone.
How should the court rule? Well, he's on a roll. Hacker will win this one. In Riley versus California in 2014, the Supreme Court said that absent exigent circumstances or consent, neither of which existed in Hacker's case, an officer needs a search warrant to access digital data on an arrested person's cell phone, that searching a cell phone that is on a person when they're arrested, is not permitted as a warrantless search incident to arrest. The court recognized that cell phones are sui generis in this modern world. They're full of all kinds of personal information that in the old days were in a bunch of different places. So, the fact that a cell phone, a smart phone got so much of our private information, the court said it can't merely be searched as a search incident to arrest.
Finally, after arresting Hacker and taking him to the jail, Officer Techie took a Q-tip and swabbed his mouth for DNA, pursuant to a state ordinance or a law that allowed for this. And then she put the DNA into the crime computer, and it detected that Hacker was involved in a cold case murder and sexual assault from years before. And he was then charged with murder and prosecuted. And he moved to suppress that DNA evidence that had linked him to the murder. How would he fair? Well, this one he's going to lose.
In Maryland versus king in 2013, the Supreme Court said that a warrantless DNA test of a person arrested for a felony offense is not a Fourth Amendment search. It's not a Fourth Amendment's search anymore than taking fingerprints when somebody is arrested as a search. So, five to four of the Supreme Court in that case held that when a person is arrested, DNA evidence may be used without a warrant. And if it links them to a crime, that's going to be admissible evidence.
All right. In our remaining time, I want to discuss some open questions in the Supreme Court's Fourth Amendment jurisprudence concerning other types of modern technology. In particular, I'd like to discuss two things that I think are subject to a lot of litigation currently and in the future. And that's the use of drones and the use of digital data saved in the cloud.
Let's start with a couple of hypothetical situations, address some arguments pro and con about whether the Fourth Amendment search happened ,and then we'll conclude. So, let's revisit our hypothetical in which Steve Hacker grew marijuana in his fenced in backyard, and Officer Techie flew the plane overhead and saw the marijuana plants. But instead, let's assume that Hacker grew marijuana inside a greenhouse in his backyard. And because of the greenhouse, Techie was unable to fly a helicopter or a plane, low enough to see inside. However, she got a drone that had a camera on it. And that drone flew really low, let's say 65 feet off the ground above the greenhouse. And using that drone's camera, Techie was able to look down into the greenhouse and see that it was marijuana. Using that information, she obtained a search warrant. She searched Hacker's house and got the marijuana and he got prosecuted. He moves to suppress.
How should the court rule? Well, to date, there is no case law directly addressing the specific issue, not even from a lower appellate court. And we don't really know how the Supreme Court would rule because they haven't had an occasion to flesh this out.
However, reasonable arguments can be made for and against this. If you look at some of the older cases involving aerial searches, in particular Ciraolo and Riley, the questions are going to boil down to, whether or not, one, the drone was in navigable airspace and two, whether it was rare or not to be flying that low in Hacker's neighborhood. So, let's just assume it was in FAA airspace. So, the question becomes, was it rare? And obviously this is going to require a lot of factual development in a particular case about how rare drones are in that particular area and how low they fly. So, under those existing decisions, it's just going to depend on the particular facts about whether Officer Techie's use of the drone to get down to 65 feet above greenhouse, whether that violated Hacker's reasonable expectation of privacy.
All right. The final scenario concerns the cloud, that is remote servers, typically hosted by commercial entities used by individuals in connection with their personal computers, their smartphones, and so forth, that permit them to access and manipulate huge amounts of data stored on the remote service.
So, let's assume Hacker had stored of luminous amount of data about other people's stolen credit card information and Social Security numbers and so forth using a data storage account in the cloud. And assume that Officer Techie acting on a hunch and without a search warrant, asked the company that hosted the servers to permit her to look at Hacker's data. And they agreed without a warrant. And she looked in that cloud account and she saw all kinds of incriminating information, which she then used to get a search warrant to search Hacker's home, which led to the discovery of additional information, stolen credit cards, et cetera. And he got prosecuted for identity theft and credit card for all and so forth. Could he move to suppress and would he win if he moved to suppress, both the evidence in the cloud and the evidence in his house?
Well, unlike drones where there's not a lot of case law yet, there is a good deal of case law concerning such data that's stored in the cloud. Riley itself, the Supreme Court's decision and Riley itself notes that phones have access to apps that have access to things stored in the cloud. So, that signals that he would likely win. But there's a very important lower court decision, US versus Warshak, Sixth Circuit, 2010, that offers strong support for the argument that a police officer's access to a cloud user storage without a warrant violates the Fourth Amendment, even with the permission of the company. So, this would be yet another exception to the third party doctrine.
Now, Warshak involved a warrantless search of a defendant's email account. But the same reasoning would apply to another kind of cloud account. I mean, an email is a cloud account, if you think about it. So, I believe this logic would apply to Hacker's stored or storage account in the cloud. It's similar to an old fashioned filing cabinet. It's just digital. And if the cops come into your house and search your filing cabinet without a warrant, that's a problem. Similarly, I think that searching the cloud without a warrant would be a problem.
So finally, I want to briefly talk about how the Fourth Amendment applies to modern technology in the context of national security and international terrorism. These are questions the Supreme Court has of to date avoided. They avoided it in Katz. They avoided it in the Keith Case. They avoided it in the Burger case. So, what they have that in these cases is always, "We don't decide national security and foreign affair issues. We only decide domestic issues."
Congress took some of the heat off the Supreme Court ever having to decide this when they enacted the Foreign Intelligence Surveillance Act or the FIS Act, which created the Foreign Intelligence Surveillance Court, The FISA Court, that has special rules about warrants for these kinds of searches. Note however, that FISA does not require probable cause that a foreign agent was violating the law. It only requires probable cause that the person was an agent of a foreign government or foreign power. Since FISA's enactment in 1978, the Supreme Court has not directly revisited the issue of national security searches, warrantless national security searches.
All right. So, I want to conclude by noting that in analyzing whether modern technologies receive protection under the Fourth Amendment, courts almost always apply the Katz reasonable expectation of privacy test. Privacy is the issue, not property in these cases. Courts have been reluctant to extend the Fourth Amendment protections to new technologies. And when they've done so, they have tried to avoid making sweeping pronouncements because they recognize how things evolve so rapidly. Yet, at least when new technologies are sufficiently analogous to traditional things protected by the Fourth Amendment, and there is a reasonable expectation of privacy, courts have been willing to extend protections to the new technologies.
In conclusion, I want to thank you for joining me for this discussion of the Fourth Amendment and modern technology. To learn more about today's presentation, please check out the accompanying course materials, which include the slides and associated presenter notes. And I hope that you'll join us again soon for another Quimbee continuing legal education presentation.