The following op-ed, written by our research intern Molly Davis, was published today in the Salt Lake Tribune.
In the digital era, our private lives are often stored within our mobile devices. In a surveillance state, law enforcement can access these devices like an open book.
While technology continues to change how people behave and interact, government policies often remain stagnant. And while laws and regulations usually don’t keep up, law enforcement agencies do a decent job—meaning that the government takes advantage of modern technology for surveillance and law enforcement, while privacy protections for you and I lag behind.
Consider the case of the stingray—a mobile phone surveillance gadget utilized by law enforcement to intercept and store a person’s phone calls, texts, emails, and location. These devices collect information from everyone in the vicinity, allowing the government to access private and potentially sensitive information about countless innocent individuals.
Up until 2014—seven years after the first iPhone was released—there was no clearly defined federal privacy protections regarding an individual’s electronic data. In Riley v. California, the U.S. Supreme Court unanimously held that a search warrant was required in order to look through the digital contents of a person’s cell phone upon his or her arrest. Note that this ruling applies only to arrested persons who have their phone confiscated when arrested; government agents routinely surveil people who have not been arrested.
This bill passed both chambers of the legislature unanimously and was signed into law by Governor Herbert.
Libertas Institute supports this bill.
A 2001 U.S. Supreme Court case, Kylio v. U.S., addressed the use of thermal imaging devices by law enforcement officials, and the ruling held that such devices could not be used without a warrant as they constituted a search.
“Where… the government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment ‘search,’ and is presumptively unreasonable without a warrant,” the majority opinion reads.
Interestingly, the ruling anticipated the development of more refined technology and held that the court “must take account of more sophisticated systems that are already in use or in development,” referring to radar technology that would be far more detailed than blurry thermal images, which would “enable law officers to detect individuals through interior building walls.”
The following are some of the important excerpts from our First Annual Fourth Amendment Forum. They are provided with time codes in case you are interested in watching that portion of the video to see the comment in context.
Kara Dansky (ACLU attorney, national office), 12:50:
Where Utah stands out is that Utah is a leader in reform, actually. Utah passed a bill last session… that will require some reporting of SWAT deployments and different kinds of data that are collected in connection with SWAT deployments. I think this is a really positive trend… As far as I can tell, no state other than Utah is making much of a concerted effort to shine some light on this problem, and to bring some transparency and oversight. So I think that that’s great.
AG Sean Reyes, 20:45:
We really do want to empower law enforcement. At the same time, though, and particularly as the lawyers tasked with protecting the liberties of our own citizens, we want to make sure that they do it properly, without depriving those rights and those liberties in the process. I don’t think it’s a zero sum game. I think we can have effective and proper law enforcement, and still be vigilant about protecting the rights and liberties of our citizens.
The following op-ed, co-authored with ACLU Utah and the Utah Association of Criminal Defense Laywers, was published in the Salt Lake Tribune.
The actions of law enforcement officers during their recent search of former Utah Attorney General Mark Shurtleff’s home have once again raised questions about the proper role of force in executing search warrants. Tremendous public discourse also followed the search of Matthew David Stewart’s home in January 2012 that resulted in the death of a police officer. These events are an opportunity for Utahns to rethink policies on the routine use of force by police, especially in light of recent research showing that more force leads to less safety.
Shurtleff understandably complained when law enforcement officers entered his home and allegedly pointed weapons at his 17-year old daughter, who was not threatening them. While Shurtleff’s complaints come a little late in light of his previous views and policies on the police use of force when he was Utah’s “top cop,” we should still listen. It remains to be seen whether authorities violated the Constitution in their actions at Shurtleff’s home. Their actions, however, were in line with current law enforcement policies and practices, under which officers serving search warrants employ extremely forceful tactics at homes, such as breaking down doors, setting off “flash bang” grenades, displaying weapons and commanding occupants to submit to authority. These tactics are not only used in emergency situations, like hostage taking. In fact, they are more typically used during investigations of nonviolent crimes, such as drug offenses (and apparently, official misconduct). Such policies and practices are not unique to Utah. The ACLU recently released a report, “War Comes Home: The Excessive Militarization of American Police,” that documents this increased use of force across the United States.
In a unanimous opinion announced earlier today, the U.S. Supreme Court ruled that police officers must obtain a warrant to search a cell phone that is seized incident to an arrest.
The case stemmed from the 2009 arrest of David Riley in California on a traffic stop that found loaded firearms in his car. The officers subsequently seized Riley’s cell phone and searched through his messages, contacts, videos, and photos. Tipped off by information they found in that search, the officers charged Riley with an unrelated shooting that took place several weeks earlier.
Riley attempted to suppress the evidence officers had found on his phone, arguing a violation of his Fourth Amendment rights. The trial court disagreed, as did the appellate court, claiming that the “search incident to arrest” doctrine—used historically to ensure that a person did not have any weapons or contraband on them while in the custody of police—permitted officers to conduct a search of a seized cell phone, even if that search is conducted later and at a different location than the arrest.
Today’s ruling by the U.S. Supreme Court overturns this argument. Chief Justice John G. Roberts Jr., writing for the unanimous court, stated:
After over a year of investigation, surveying law enforcement agencies in 26 states, the ACLU has now released its report on police militarization. “Neighborhoods are not war zones,” the report reads, “and our police officers should not be treating us like wartime enemies.” Data obtained from open records requests for the years 2011-12 covers over 800 SWAT deployments in the report.
Noting that at least 62% of SWAT deployments from their data deal with drug searches, ACLU says that the use of “heavily armed SWAT teams” to search people’s homes for drugs “means that law enforcement agencies across the country are using this hyper-aggressive form of domestic policing to fight a war that has waning public support and has harmed, much more than helped, communities.”
While the report focuses on the equipment used by officers and the alleged crimes that lead them to use it, it also discusses how police militarization is about “culture.”
Today the Eleventh Circuit Court of Appeals issued an opinion in the case of United States v. Quartavious Davis that may impact the policy landscape relative to fourth amendment application in the digital age.
The case was brought about after government agents obtained the cell phone location information of four people over a two month period in 2010 as part of a criminal investigation in Florida. The records were obtained without a warrant. Police received 11,606 location records of one of the suspects, Quartavious Davis, averaging 173 location points each day. Davis was convicted at trial based on this information, and appealed his ruling to the Eleventh Circuit Court. Today’s opinion is the first time a federal appeals court has ruled that a warrant is required to obtain cell phone location data.
“There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute,” the three-judge panel wrote in a unanimous opinion. “In short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.” While the court’s ruling applies only to Florida, Georgia, and Alabama, it may very well be referenced and used in other court cases navigating through the judicial system.
The U.S. Supreme Court recently issued a decision in the case of Navarette v. California which has potentially grave consequences for Fourth Amendment rights. The decision upheld the stop of a vehicle precipitated by an anonymous phone tip of erratic driving. Upon identifying the reported vehicle, police followed and did not observe any traffic infractions or signs of impaired driving to corroborate the phone tip. Nevertheless, officers stopped the vehicle based on the alleged reasonable suspicion created by the phone call alone. While the court’s opinion is narrow and contingent on specific facts, it leads us down a dangerous road that erodes the reasonable suspicion standard designed to protect Fourth Amendment rights. By allowing an uncorroborated anonymous phone tip to form the basis of reasonable suspicion, we open the possibility for anyone to send government agents to stop innocent actors without requiring any verification of the accusation.
The court points out the precedent-creating legal standard for a permissible stop:
The Fourth Amendment permits brief investigative stops — such as the traffic stop in this case — when a law enforcement officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” The “reasonable suspicion” necessary to justify such a stop “is dependent upon both the content of information possessed by police and its degree of reliability.” The standard takes into account “the totality of the circumstances — the whole picture.” Although a mere “hunch” does not create reasonable suspicion, the level of suspicion the standard requires is “considerably less than proof of wrongdoing by a preponderance of the evidence,” and “obviously less” than is necessary for probable cause.
This type of stop is called a “Terry stop,” deriving its legal authority from the case of Terry v. Ohio (1968) where the court recognized a limited exception to the more traditional probable cause standard for seizing a person in an arrest. In Terry, the court agreed that stopping a person is a form of seizure, and therefore covered by the Fourth Amendment. However, the court reasoned that because this type of police stop is only a brief detention and not the full seizure as with an arrest, they would recognize a limited exception and thus lowered the required standard from probable cause to reasonable suspicion. Over time, the court has widened the application of this exception, giving more discretion to police stops generally. In this case we now see a dilution in the factors that can form a reasonable suspicion.
By Sean Brian
Editor’s Note: The issues at heart of the cases described below were the subject of pioneering legislation in Utah that now protects stored and transmitted data on electronic devices such as a cell phone. Of course, federal law—and laws in other states—must still be elevated to the same Fourth Amendment standard.
The following is an abridged version of the author’s 33-page article, available as a free download.
Next week, the U.S. Supreme Court will hear arguments in Reily v. California and United States v. Wurie to resolve the deepening division of authority on how the incident to arrest exception should be applied in the context of cell phones. But in such a fast-paced industry, the Court must also consider how the rule will apply as innovators blur the lines between cell phones and other devices that raise the same Fourth Amendment concerns.
The Fourth Amendment guarantees the right to be secure in our persons and possessions by protecting citizens from unreasonable searches and seizures. Usually, this means that police must first obtain a search warrant in order for the search to be considered reasonable. The incident to arrest exception is an exception to the warrant requirement for searches of an arrestee’s person and area within the arrestee’s control (including any containers) by virtue of a lawful arrest. The reasons for this exception were spelled out in Chimel v. California: to ensure officer safety and preserve evidence that the arrestee might destroy, discard, or conceal. However, these justifications are not requirements to be met in order to justify searches on a case-by-case basis, but rather underlying rationales for the exception’s existence. The only requirement for the exception to apply is a lawful arrest.
Editor’s note: Libertas Institute has been closely following and influencing policy issues related to the use of police authority including task force raids, police militarization, and forcible entry warrants. Conventional wisdom suggests that law enforcement officials are at odds with those who champion civil liberties, but as this interview demonstrates, that narrative is not entirely accurate.
The following is an edited transcription of an interview Libertas Institute conducted with Christopher Gebhardt about these issues. Gebhardt is a 15 year police veteran and three-time SWAT commander in Utah. The comments in this interview do not necessarily reflect the views of Libertas Institute.
Libertas Institute: Describe for us your law enforcement service and experience.
Christopher Gebhardt: I started my career in Washington, D.C. working for the Metropolitan Police Department in 1990 where I finished as a Lieutenant. After that, I worked for a while in the corporate world before coming to Utah where I got back into law enforcement and worked in Utah law enforcement for seven years. I served a total of about 15 years directly in law enforcement.
LI: What type of experience did you have in SWAT?
CG: I was part of several SWAT teams here in the Salt Lake Valley. I started out as a base operator, got promoted, and worked as a team leader for several different teams and worked with a lot of the SWAT teams in the valley.
LI: What was the difference, if any, between your experience in D.C. and Utah? Were there any differences in police mentality, approach, or tactics?
Here it seemed the local police officers and deputies didn’t really dive into case law that much, or as much as I think they should.
CG: I think there was a big regional difference in approach in the Northeast compared to my experience in Utah. For example, the academy back east was much harder to get through. You had to be able to recite verbatim the 4th Amendment because it was much more embedded in the culture of law enforcement there. Case law was always being brought up and trained and instilled, whereas here in Utah, I think that is lacking a bit. Here it seemed the local police officers and deputies didn’t really dive into case law that much, or as much as I think they should.