This post is the second in a series examining the impact of Carpenter v. United States, 585 U.S. ___, 138 S.Ct 2206 (2018) on electronic surveillance and the obtaining of location and other types of information from third parties. The first post in this series summarized post-Carpenter decisions relating to surveillance by pole camera and tower dumps. This post examines post-Carpenter rulings on the obtaining of real-time surveillance information through satellite-based Global Positioning System data (GPS) or cell site location information (CSLI). The last post in this series will examine the use of cell site simulators and the obtaining of other information about a person’s on-line activities or accounts from third parties.
Tag Archives: surveillance
Two years have passed since the Supreme Court held in Carpenter v. United States, 585 U.S. ___, 138 S.Ct. 2206 (2018), that the government carried out a Fourth Amendment search when it obtained historical cell site location information (CSLI) for the defendant’s phone from a wireless carrier. Relying in part on the view expressed by five concurring justices in United States v. Jones, 565 U.S. 400 (2012), that individuals have a reasonable expectation of privacy in the whole of their physical movements, the court determined that allowing the government access to at least seven days of historical cell-site records contravenes that expectation, even when the records are generated for commercial purposes and held by a third party.
The Carpenter majority characterized its decision as “a narrow one” and noted that it was not expressing a view on “real-time CSLI or ‘tower dumps,’” disturbing the traditional application of the third-party doctrine, or “call[ing] into question conventional surveillance techniques and tools, such as security cameras.” Id. at 2220. Dissenting justices, in contrast, characterized the court’s reasoning as “fractur[ing] two fundamental pillars of Fourth Amendment law,” and “guarantee[ing] a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely.” Id. at 2247. (Alito, J., dissenting).
Lower courts have applied and distinguished Carpenter in a number of cases involving electronic surveillance and the obtaining of location and other types of information from third parties. This post, the first in a three-part series, summarizes post-Carpenter decisions relating to surveillance by pole camera and tower dumps. The second post in this series will examine post-Carpenter rulings on the obtaining of real-time surveillance through GPS or CSLI. The third post will consider the use of cell site simulators and the obtaining of other information about a person’s on-line activities or accounts from third parties. After reading all three, you can decide for yourself whether Carpenter’s progeny has bolstered the majority’s view of its limitations or has borne out the dissent’s warnings regarding its reach.
Placing a video camera on a utility pole and conducting surveillance can be a useful law enforcement tool to gather information without requiring an in-person presence by officers at all times. But this tool may be subject to the Fourth Amendment restrictions. This post reviews the evolving case law, particularly since the United States Supreme Court ruling in United States v. Jones, 132 S. Ct. 945 (2012).
Jeff Welty in a 2013 post reviewed video surveillance generally, not just pole cameras, and discussed Jones and the few cases decided in light of its ruling. This post, after reviewing Jones, will discuss a few pole camera cases decided in federal courts since his post and whether officers should seek approval from a court before conducting pole camera surveillance. Continue reading →
More and more criminal cases involve video evidence, whether from patrol car dash cameras, store surveillance cameras, witness cell phone cameras, or, in the near future, wearable cameras. It’s important to know the authentication requirements for such evidence. A recent court of appeals case sets a high bar for admissibility. Continue reading →
Maybe so, according to a recent Reuters report. Apparently, the Special Operations Division of the DEA receives information from the NSA and passes it to DEA field agents. The agents then begin criminal investigations based on the information. There are two possible problems with the program described by Reuters.
End run around privacy protections. First, the NSA collects huge amounts of data under permissive legal standards because the data is gathered in the interest of national security. Allowing that data to be used for domestic law enforcement purposes, where a higher legal standard applies to data collection, could amount to an end run around the privacy protections that apply in the criminal justice system. As a Washington Post blog notes here, the NSA-DEA pipeline may “break down the barrier between foreign counterterrorism investigations and ordinary domestic criminal investigations.” It’s hard to analyze this issue further without specific information about what types of data are being collected and shared. Some data is more protected – under the Fourth Amendment and under federal statutes such as the Stored Communications Act – than other data, and the Reuters story lacks detail about the nature of the information provided by the NSA.
Falsification of evidence. Second, the DEA agents who receive the information apparently are “directed to conceal how such investigations truly begin.” Reuters explains:
A former federal agent . . . described the process. “You’d be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.’ And so we’d alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it,” the agent said. After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as “parallel construction.”
This seems to me to be very serious. The implication is that DEA agents are preparing false reports about the chronology of their investigations, giving false information to prosecutors (who in turn may provide false information to the defense in discovery), and testifying falsely at trials, all to conceal the true source of their investigations.
How things should work. The impulse to protect the source of the information is understandable. Officers often have good reasons for wanting to conceal the origins of their investigations. For example, they may want to conceal the identity of a confidential informant who initiated a drug transaction in the hopes of using the same informant again in the future. Here, the DEA may want to hide the existence and the reach of the NSA’s surveillance programs, because revealing those things might prompt the subjects of the programs to alter their behavior and evade surveillance.
But the proper way to handle those concerns is not to falsify reports and mislead the parties and the court. It is to ask a judge to enter a protective order shielding the sensitive information from discovery. The judge can balance the legitimate concerns of law enforcement against the interests of the defendant, such as learning whether the source of the information was reliable, whether the information contained any exculpatory material, and whether the information was obtained in violation of privacy protections. Balancing the need for secrecy against other interests is a process with which courts are very familiar. See generally Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (requiring courts to review sensitive documents such as DSS records in camera when they are potentially relevant to a criminal case, as a way of protecting both the defendant’s right to exculpatory material and the need for confidentiality in such records); United States v. Nixon, 418 U.S. 683 (1974) (ruling, in a prosecution of former government officials for obstruction of justice, that the prosecutor’s need for the President’s tape recordings and documents outweighed the President’s interest in the confidentiality of the materials where national security considerations did not appear to be at stake); Roviaro v. United States, 353 U.S. 53 (1957) (in a drug prosecution, the Court ruled that the defendant’s need to know the identity of an informant who allegedly participated in a drug transaction with the defendant outweighed the Government’s interest in protecting the informant’s identity).
What’s next? The DOJ says that it is “looking into” the story. Good. Perhaps the story is inaccurate or perhaps there are non-obvious reasons that justify the behavior the story describes, but at this point, the story appears to have exposed a genuinely pernicious practice.
Law enforcement use of automated license plate readers has become very widespread. It raises several interesting legal and practical issues which I briefly explore below.
What are they? License plate readers are electronic devices – basically, enhanced cameras – that scan each passing car, detect the license plate, read it, and record it. The devices may also photograph the plate, such as when the plate matches a “hot list” of stolen plates. The readers may be stationary, mounted on a light pole or an overpass, or they may be mobile, mounted on a police vehicle. When mounted on a vehicle, they may send an alert to the officer driving a vehicle when they detect a noteworthy plate.
Widespread use. According to public records obtained by the ACLU, at least the following North Carolina law enforcement agencies are using license plate readers:
- Charlotte-Mecklenburg Police Department
- High Point Police Department
- Jacksonville Police Department
- Raleigh Police Department
- Washington Police Department
- Wilmington Police Department
- Wilson County Sheriff’s Office
- Wrightsville Beach Police Department
Other agencies such as the Fayetteville Police Department and the Greenville Police Department, have experimented with or are exploring the use of plate readers.
I don’t know how the ACLU identified agencies to query, or how it decided which responses to post online, but a substantial majority of the agencies whose responses it posted acknowledged using plate readers. Survey data suggests that a majority of all law enforcement agencies already use the readers, and I assume that even more agencies will do so in the future as the technology becomes better known and less expensive. In a few years, every police vehicle may be topped with a plate reader.
Plate readers and traffic stops. Plate readers aren’t perfect, as illustrated by Green v. City and County of San Francisco, 2011 4434801 (N.D. Cal. Sept. 23, 2011) (unpublished), a civil suit arising out of a plate reader’s mistaken determination that plate 5SOW-3-50 matched stolen plate 5SOW-7-50, and the resultant “high risk felony stop” at gunpoint of an innocent motorist. In light of the devices’ fallibility, when an officer receives an alert from a plate reader mounted on her police vehicle, may she rely on the alert to stop the vehicle identified by the reader?
At least in many circumstances, the answer may be yes. See Hernandez-Lopez v. State, 319 Ga. App. 254 (Ga. Ct. App. 2013) (reasonable suspicion supported a vehicle stop where a plate reader gave an officer a “‘wanted person’ alert” after detecting a license plate associated with a person who had previously failed to appear in court; the officer noted that the wanted person was a male as was the driver of the vehicle); People v. Davila, 901 N.Y.S.2d 787 (N.Y. Sup. Ct. 2010) (a plate reader alerted to a vehicle with suspended registration; this provided reasonable suspicion to support a traffic stop). But cf. Rodriguez v. State, __ S.E.2d __, 2013 WL 1767660 (Ga. Ct. App. 2013) (a driver was issued traffic citations and failed to appear in court to answer them, so an arrest warrant was issued for the driver; later, a cruiser-mounted license plate reader spotted the license plate associated with the previous citations; officers stopped the vehicle based on the match; although the person driving at that point was not the subject of the arrest warrant, officers searched the car based on consent and found marijuana; a majority of the appellate court found that the defendant waived her right to contest the validity of the stop, while a dissenting judge would have ruled that, absent evidence that the vehicle was registered to the fugitive [information that the plate reader system did not supply] or that the driver shared physical characteristics with the fugitive [which she did not, as the fugitive was a male] there was not a sufficient basis for the stop).
Privacy concerns. The ACLU just released a report on readers, entitled You Are Being Tracked. The report acknowledges the crime-solving potential of the devices, but argues that the proliferation of the readers and the long retention of the data that they collect poses a privacy threat:
The implementation of automatic license plate readers poses serious privacy and other civil liberties threats. More and more cameras, longer retention periods, and widespread sharing allow law enforcement agents to assemble the individual puzzle pieces of where we have been over time into a single, high-resolution image of our lives. The knowledge that one is subject to constant monitoring can chill the exercise of our cherished rights to free speech and association. Databases of license plate reader information create opportunities for institutional abuse, such as using them to identify protest attendees merely because these individuals have exercised their First Amendment-protected right to free speech. If not properly secured, license plate reader databases open the door to abusive tracking, enabling anyone with access to pry into the lives of his boss, his ex-wife, or his romantic, political, or workplace rivals.
Law enforcement generally disagrees, noting the absence of actual examples of abuse, in contrast to the plentiful real examples of plate readers solving crimes like vehicle theft (N&O story) and murder (Jalopnik story). One of the key issues in this area is how long the license plate data should be retained. Agencies vary in this regard, with retention periods ranging from 48 hours to indefinitely.
Fourth Amendment issues. Whether the use of plate readers is a privacy problem or not, at least under conventional Fourth Amendment doctrine, using a plate reader isn’t a “search” because the reader is just looking at something in public view. See United States v. Wilcox, 2011 WL 679416 (11th Cir. Feb. 28, 2011) (unpublished) (defendant argued that “the use of the tag reader technology amounted to unconstitutional surveillance that violated his reasonable expectation of privacy,” but the court disagreed, finding no expectation of privacy in the defendant’s license plate as it was plainly visible on the public roads). Cf. State v. Chambers, 2010 WL 1287068 (N.C. Ct. App. April 6, 2010) (unpublished) (“Defendant’s license tag was displayed, as required by North Carolina law, on the back of his vehicle for all of society to view. Therefore, defendant did not have a subjective or objective reasonable expectation of privacy in his license tag. As such, the officer’s actions did not constitute a search under the Fourth Amendment.”).
However, when data gathered from multiple plate readers is combined, and is retained over time, one could argue that the resulting database approaches continuous surveillance, akin to constant tracking of every vehicle. This may eventually implicate the so-called mosaic theory of the Fourth Amendment. The Supreme Court’s decision in United States v. Jones, __ U.S. __, 132 S.Ct. 945 (2012), the GPS tracking case I discussed here, suggests a receptiveness to that idea. That is, a majority of the Court appears sympathetic to the notion that long-term monitoring of individuals’ movements without a search warrant may be forbidden by the Fourth Amendment. Plate readers likely are not yet ubiquitous enough to raise a serious Fourth Amendment question about their use, but as their presence grows, that day may come.
There’s been quite a buzz lately about Google Glass, a “wearable computer” that looks like a pair of eyeglasses but that uses the lenses as transparent screens to display information to the user. (For example, the user might have CNN headlines constantly scrolling on the edge of the screen, or might have the glasses show a list of nearby coffee shops.) One feature of Glass that has received considerable attention is its ability to record still photos and video. Privacy advocates are concerned that it will usher in an era of ubiquitous recording, of constant surveillance. But isn’t that era already upon us?
Consider some of the technologies already in use by law enforcement:
- In-car cameras, currently installed in almost three quarters of state police and highway patrol vehicles, as noted here in The Police Chief
- Wearable cameras, discussed in this New York Times article (the article refers specifically to camera glasses made by Taser, such as the AXON Flex, shown here)
- Stationary surveillance cameras, which are present in virtually every major city as discussed here in the Wall Street Journal and here in the Newark Star-Ledger
- License plate readers, which have been deployed in Raleigh according to this WRAL article
- Surveillance drones, discussed in this CBS News piece
And don’t forget that most officers and civilians alike carry cell phones everywhere they go, and that most cell phones are capable of recording still photos and video.
The prevalence of recording devices raises a number of legal questions, from Fourth Amendment concerns to discovery issues. On the latter point, consider, for example, when footage from a stationary surveillance camera becomes part of the “file” that must be disclosed to the defense during discovery. Is it when an investigating officer saves a copy of the footage to his or her computer? When the officer views the footage, even if he or she does not save a copy? When footage within a certain time and distance from the time and scene of the crime is recorded, regardless of whether an officer ever views it?
For now, I’d like to abstract away from particular legal issues and ask for comments on a few more general questions:
- First, which recording technologies are showing up most often in court here in North Carolina?
- Second, are the recordings working more often in favor of the state or the defense?
- Third, where do you turn for help with the legal and practical issues presented by recording technology? Are there references or experts that, for example, law enforcement agencies turn to when deciding whether to implement wearable cameras? Are there resources that lawyers used when litigating the Fourth Amendment issues presented by these technologies?
I may have more to say about these issues in the future, but at this point I’m interested in hearing others’ views.
Lots of interesting developments in the news recently. The Tar Heels won another women’s soccer national championship, and the United States finally got a favorable draw for the World Cup. Oops, wrong kind of news. Anyhow, recent criminal law happenings include:
2. The News and Observer ran an article this weekend about the restorative justice movement, and a Durham meeting promoting it. The piece describes restorative justice as “a new movement that focuses on healing the harm that results from crime as opposed to simply meting out punishment.”
3. The New York Times has a terrific preview of the Supreme Court’s upcoming arguments about the scope of the federal “honest services” statute that has been at the heart of several recent high-profile prosecutions. With the high-profile investigations now going on in the United States Attorney’s Office in Raleigh, what the Supreme Court does could have a significant local impact.
4. Speaking of the United States Attorney’s Office, President Obama recently nominated Charlotte lawyer Thomas Walker to be the United States Attorney for the Eastern District of North Carolina, as reported here. He’s a former state and federal prosecutor now in practice with Alston and Bird, LLP.
5. This blog post about cell phone companies releasing tracking data to law enforcement has been receiving a lot of attention. The title, 8 Million Reasons for Real Surveillance Oversight, is based on a statement apparently made by a highly-placed Sprint employee that the company filled eight million law enforcement requests for location data last year alone. I suspect that figure, if accurate at all, is based on a very elastic definition of “request.” Certainly that’s what Sprint is now saying. Regardless, the post contains a lot of provocative material for those interested in law and technology. I should add that the author’s not a lawyer and that the technical and statistical aspects of the piece are better than the legal aspects.
6. Speaking of blogs, the ABA just released its annual list of the 100 top legal blogs. No, we’re not on it. (Yet!) But lots of interesting blogs are, so check out the list here.
7. Finally, British prosecutors recently dropped charges against a man who strangled his wife, concluding that he was sleepwalking when he killed her. The story is here. In North Carolina, a sleepwalking defendant would argue automatism or unconsciousness, and N.C.P.I. — Crim. 302.10 would be the relevant pattern jury instruction.