Privacy in a Tech World: Cellphone Data Requires a Warrant

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After Apple Inc. announced the release of the iPhone 6 models for September 19^th, the tech community roared in excitement about all of the new capabilities, and what a new smart phone could do for them.  With more than 1.2 million apps available, it’s pretty much a guarantee that “there’s an app for that.”  Increasingly, many people use apps for issues they may wish to keep private, such as sending confidential emails, or more controversially, for the “sexting” phenomenon.

“High Crime Area” Undefined

Map of US Murder Rate in 1965

The phrase “high-crime area” is often thrown around, but what does it mean exactly?  The term "high-crime area" was first used by the Supreme Court in Adams v. Williams, where the Court stated: "While properly investigating the activity of a person who was reported to be carrying narcotics and a concealed weapon and who was sitting alone in a car in a high-crime area at 2:15 in the morning, Sgt. Connolly had ample reason to fear for his safety." In a series of Fourth Amendment cases from Adams v. Williams to Illinois v. Wardlow, the Supreme Court of the United States has considered the character of the neighborhood to be one factor in finding "reasonable suspicion" to stop someone. Specifically, in Wardlow, the Court found that "officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation." 

In Brown v. Texas, the Supreme Court was asked to decide whether being confronted in a “high-crime area” alone was enough to justify a Terry stop.  The officers in Brown could only say that the appellant "looked suspicious," but could not articulate why. The Court eliminated this factor from consideration.  The only other factor the officer offered was that the appellant was in a high-crime area. The Court held that, standing alone, being in a high-crime area was "not a basis for concluding that appellant himself was engaged in criminal conduct," because the "appellant's activity was no different from the activity of other pedestrians in that neighborhood."  While stating that being in a high-crime area is insufficient to show reasonable suspicion, the Court did not exclude the factor from consideration, so long as the officer could point to other facts that differentiated the suspect from the community at large.

Although the Supreme Court does not allow the character of the neighborhood to be the sole justification for a stop based on reasonable suspicion, it has narrowed the totality of circumstances needed to two factors: "high-crime area" and unprovoked flight from police. 

After the Supreme Court's decision in Wardlow, courts could consider whether an area is a “high-crime area” in a Fourth Amendment reasonable suspicion determination. The problem is that the Supreme Court has never provided a definition and lower court decisions offer little guidance.

In Washington, D. C., “several arrests" has been deemed sufficient to title a location as a “high-crime area.” This criterion was observed in United States v. Lovelace. where officers testifying to making several prior narcotics arrests coupled with residents' complaints of narcotics dealing was sufficient to characterize that area as a "high-crime area." In James v. United States, a District of Columbia Metropolitan Police Officer pulled over a car that had just swerved near the officer's cruiser.  The stop occurred on a street described by the officer as "high crime, violent crime, it's high narcotics, it's high everything - burglaries, robberies."  When the officer approached the car, the driver looked at the officer and "kind of raised his body up a little bit, and then bent all the way down and then he sat back up."  This led the officer to believe that the driver was "pulling a gun from his waist and putting it under the seat."  A search incident to the stop resulted in the recovery of a gun, and James was charged with a series of gun offenses.  James moved to suppress the gun and lost.  On appeal, after noting that the "high-crime area" factor is "certainly relevant," the District of Columbia Court of Appeals stated “that is especially true in this case, given that the area where appellant was stopped was not just a ‘high crime' area, but an area known specifically for the type of activity - i.e., gun possession - of which [the officer] suspected appellant." Based on the near collision and the “high-crime area,” the District of Columbia Court of Appeals affirmed the trial court’s decision.

Mayes v. United States, provides yet another example of the pitfalls of imprecision and unreliability surrounding the term “high-crime area.” In Mayes, the officers approached a stopped car in front of a "notorious crack house" which they believed matched the description of a car used in a shooting the previous night.   At the motions hearing, the government offered evidence that the block on which the stop occurred was in a "high-crime area," generally, and that the house in which the defendants were parked in front of was, in particular, a "notorious crack house."  Defense council rebuked the government’s assertion and introduced testimony that showed that "the building was in fact a high-rent luxury apartment house with its own security fence," which housed mostly "professional people." Although the trial court rejected the officer's claim that the house was a "notorious crack house," it still "credited the testimony that the general area was a high crime area.  Further, the appellate court held that "the trial court was required, and so are we, to include in the [reasonable suspicion] calculus … the character of the neighborhood."

Mayes, Lovelace, and James highlight the difficulties that can arise when areas in our nation’s capital are described as high-crime and not supported by documented and quantifiable evidence. Moving forward practitioners should seek to investigate the foundation for such assertions. Statistics and trend analysis should be used in conjunction with officer testimony to support the designation of an area as “high-crime.”

Stephane L. Plantin

Staffer, Criminal Law Practitioner

Photo by Delphi234 via Wikimedia Commons

Recent Issues in Using Midzolam in Executions

In late July, the United States Supreme Court lifted a stay issued by the Ninth Circuit that required the State of Arizona to provide information about its lethal injection drug cocktail to inmate Joseph Rudolph Wood.  Mr. Wood was executed that same day.  His death was characterized by reporters as taking more than two hours and he took more than 600 gasps for air.  Most executions are complete in ten or eleven minutes.  Mr. Wood’s lengthy execution comes on the heels of another lengthy execution where Mr. Dennis McGuire took more than 20 minutes to die in Ohio, and also repeatedly convulsed and fought for breath after being injected.  An inmate in Oklahoma took more than a half an hour to die in his execution.

Justified Homicide and the Diminishing Duty of Reasonability

In the wake of the Mike Brown shooting in Ferguson, Missouri, it is difficult not to reflect on the constant expansions of affirmative defense doctrines that seem to be increasingly lenient. Specifically, self-defense laws and the fleeing felon doctrine demonstrate how the law has steered away from “defending”, and has empowered the attacked to become the aggressor. By removing the duty to retreat, and not creating any sort of alternative action provisions to prevent deadly force, self-defense, in some states, has become a license to kill. The fleeing doctrine, on the other hand, allows trained law enforcement, which are skilled in using defensive methods to apprehend suspects, to use deadly force if the felon resists and flees. Instead of using other techniques to stop and subdue, deadly force is permitted if it is reasonable to believe that the officer is in danger of deadly force or physical injury, or if others are. While justifiable homicides are commonplace in our criminal law system, this shift from trained police to everyday citizens having these rights is concerning. On the one hand, there is a necessity to permit reasonable force to defend against injury/assaults on one’s person. On the other hand, where is the line between reasonable force and vigilante justice? When does that line begin to get disturbingly blurred at the hands of our judicial system? This entry will discuss state self-defense laws, their application in controversial cases, and potential reform efforts. 

Traditionally, the law allows the use of deadly force only when one reasonably believes that they are in imminent danger of death or serious bodily harm.  As it stands, the defense of self allows for individuals to use the necessary force to protect their person and their life. What is troubling is the constant expansion that states are using to create more lenient self-defense laws. From states that do not require there to be imminent danger of death to states that allow you to murder over property, the boundaries are constantly tested, pushed back, and blurred. This was exhibited in a study that showed the expansion of self-defense laws lead to more homicides by a significant 8%.

This 8% increase should raise eyebrows, as it directly impacts the role of the prosecutor.  That is an additional 600 homicides per year across states that have expanded the castle doctrine. Homicides are on the rise because they are “justified” through states permitting the use of unnecessary force. This will increase prosecutorial workloads. For those who are taken to trial, it takes up the court’s time, it is costly, and victims’ families are forced to listen to testimony that indicates deadly force was okay, even though the harm had passed. The prosecutorial role contains a duty to be an administrator of justice. That justice shouldn’t extend to self-proclaimed warriors, using the statutes as a shield to commit murder, but instead it should be used to ensure that self-defense is only allowed when there is a life to defend. These laws are tying the hands of prosecutors who wouldn't be able to bring forth a case where one of these expansions prevented it. So where is the accountability for those that intentionally manipulate the law in order commit these crimes?

In Texas in 2007, Joe Horn chased and shot down burglars after they stole property from his home. At the time he was on the 911-dispatch call and was alerted that there were officers en route. Since he was chasing them, there was also no apparent harm. However, a grand jury refused to indict him. It should be noted that throughout the call, Horn continuously said to the dispatcher that he had a right to defend himself and his property, and as he chased the burglars he stated “I’m going to kill them.” The law protected Horn as he chased down the burglars, and gunned them down.  

The “stand your ground” law that Texas modeled its castle doctrine after has long been deemed the vigilante justice doctrine that hands people a gun and a license to kill. By having no duty to retreat, even outside the home, states are empowering the attacked to become the attacker. This concept of allowing pursuance even when the danger has ceased brings us to present day Ferguson, Missouri. Legal experts in the media frenzy surrounding the Mike Brown killing have reported that self defense includes consistent pursuance until deadly force is used. In Tennessee v. Gardner, the Supreme Court ruled on this issue in relation to law enforcement. The Fleeing Felon Rule allows law enforcement to use deadly force to retrieve a felon. This justifiable homicide, which can be conducted while the felons are subdued, seems to deter the entire goal of the doctrine itself. By not requiring some level of retreat or at least avoidance, this doctrine can easily lead to a game of hunter and hunted. It completely contradicts the “reasonable” force expectations.

The modifications to justifiable homicide defenses for both citizens and law enforcement continue to be a rising issue. The attacked are given a license to kill and not a permit to protect. When states permit deadly force to the extent that one can hunt down their initial attacker, burglar, etc., it sends a very inconsistent message to communities. That message conflicts with the initial message of protecting your home, protecting your person, and protecting your community, because it contains no responsibility to retreat or use a lesser force.  That same message is being echoed through the application of the fleeing felon doctrine. Even though there must be a reasonable belief that serious injury or death from the hands of the felon may occur, there is still no requirement for an officer to first attempt a lesser level of force for apprehension before deadly force is used. Instead of taking measures to stop the criminal, they are permitted to kill. These steps taken by states are sending a message that it is okay to kill when you have to, but it is also sending a message that says you can kill if you want to. There is no duty to retreat, no duty to use a lower level of force, and therefore no duty to be held accountable.

Amber Cleaver

Staffer, Criminal Law Practitioner 

Photo by Mike Licht, via Flickr

Going Apple Picking: The Rise of Cell Phone Thefts in Major Cities, and the Industry Fueling It

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People tell me I don’t have the world’s greatest survival instincts.  I can’t really say that they’re wrong.  I spent most of my life growing up in rural New York, about thirty minutes outside of Buffalo.  Our local paper put out alarming headlines about town youths kicking the railings out of the park gazebo, and when I was in middle and high school, I remember not one – but three annual school-wide assemblies castigating us for the cardinal scourges of pencil-based bathroom graffiti and “freak dancing[1].”

Anyways, transport this same kid to inner-city Baltimore a few years later and the story pretty much writes itself.  But my editor tells me that I have a word minimum for each of these posts so I’m going to write it anyway.  I decided to go out one night in Federal Hill, which is what realtors call an “entertainment district,” after a particularly harrowing week at the Baltimore City State’s Attorney’s Office.  I figured my apartment, just under a mile away, outside of Johns Hopkins Hospital, wouldn’t be too difficult a walk.  Like I said, my life experiences from living in Clarence, New York and Albemarle Street haven’t exactly turned me into a street samurai[2].

Making my way through the streets of Baltimore, I’m approached by a local with a rather surly disposition.  He asked to see my phone, and I complied.  As much as I love statistics, I’d rather not become one.  I handed over my Windows Phone, and he turned it on.  He then asked, somewhat impolitely, what it was.  After he found out that my phone, a Nokia model that was state-of-the-art at the time that Jersey Shore was considered a novel form of entertainment, he tossed it back and suggested that I do something rather anatomically impossible with myself.  Subsequent letters to Microsoft suggesting an ad campaign “Windows Phones: Not Worth Stealing,” have gone unanswered.

I was not alone in being accosted for my phone.  This year cell phones theft accounts for one in three street robberies.  In San Francisco, it makes up four in every ten street robberies.  In New York City, cell phone thefts make up fully half of all street robberies.  Today, cell phone theft now accounts for fourteen percent of all major crimes committed in New York City.  NYPD Commissioner Ray Kelly places the blame for New York’s spike in crime specifically on theft of Apple products.

In response to this growing trend, police officers have increased the size of their organized crime departments in an effort to combat the small-time neighborhood crews pulling these thefts.  CTIA – The Wireless Association has teamed up with the FCC to create an expansive database of cell phones to allow for better tracking of the devices, and allow the user to remotely “kill” the phone following its theft.  An alternative use of the system, allowing Bruce Wayne and Morgan Freeman to use phones to create electronic maps of every city with cell phones is – at this point – purely speculative.

Apps like “Find my iPhone,” and “Activation Lock,” a personal kill switch, have surged in popularity.  However, these apps do little to actually address the issue, specifically because these phones can be sold back for profit, regardless of condition.  Easy money is to be made, not in using stolen phones, but in selling them.  Companies like Gazelle.com advertise on daytime TV, and offer quick cash for cell phones in any condition.  Kill switches are a pretty substandard deterrent when a company is willing to offer up to a hundred dollars in easy cash for a phone that doesn’t even turn on.

Too lazy or not tech-savvy enough to deal with an online fence?  No problem, just take your ill-gotten cell phone to the nearest mall, and stick it into devices that are innocuously called “EcoATMs.”  These are kiosks throughout the country, resembling ATMs that a person can simply put a cell phone in, regardless of condition or charging state, and receive an immediate payout.  For a top-of-the-line phone, EcoATM’s are able to pay out hundreds of dollars.

Now, EcoATM’s parent corporation, Outerwall, pays lip service on their website towards cooperation with law enforcement.  They tout their “extensive security processes,” in place to prevent the sale of stolen phones.  These “extensive processes” amount to asking the seller to scan their driver’s licenses, and taking a picture of the seller.  An investigation by Baltimore journalists have shown that the machines are unable to identify between a white woman and an Indian woman ten years younger than her.  I have a hard time calling something an “extensive security process” when it can’t even draw the same distinctions that my ninety year-old, legally blind great aunt is capable of.

Philadelphia was the first city to ban EcoATMs, with Baltimore and DC quickly following suit.  There is a huge market to be made abroad for secondhand phones, and companies like Outerwall are making money hand over fist... and that metaphor kind of seems rather pointed when there’s people getting their heads split open for Outerwall’s profits.  

The most odious element of this problem isn’t born from Outerwall or Gazelle though.  George Gascón is the San Francisco District Attorney, and worked with California and New York Lawmakers to adopt plans to better proliferate kill switch technology.  According to Gascón, the stiffest opposition to this development, however, has come from cell carriers themselves. And why wouldn’t it?  Even though the Outerwall makes money on every cell phone sale – stolen or otherwise – AT&T, Sprint, and Verizon have brought in almost four billion dollars in revenue from selling cell phone insurance. 

Law enforcement officers and prosecutors are facing an even bigger hurdle in breaking up cell phone theft rings. Consumer databases, have proven largely ineffective in fixing the issue and many of the phones make their way overseas, where recovery for evidence purposes is virtually impossible.  Ultimately, the real kill switch that needs to be thrown is the one attached to the gross profiteering from theft that marks this industry.  

Travis Nemmer

Staffer, Criminal Law Practitioner

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[1] For the record, I still do not know what this is, and I am fairly certain that I did not partake in it. Your humble author was apparently not particularly popular in High School. Editor’s Note – Or in Law School.

[2] My predilections towards referencing 1980’s Pen-and-Paper roleplaying games probably explains a lot about the above footnote. Editor’s Note – “Probably?”

Church v. State: The Debate Over Allowance of Beards in Prisons

Gregory Houston Holt, also known as Abdul Maalik Muhammad (hereinafter Holt), appealed in a hand written statement to the United States Supreme Court seeking certiorari for his right to wear a beard. Holt, currently serving time in an Arkansas Prison, wrote that correctional officers “force inmates to either obey their religious beliefs and face disciplinary action on the one hand, or violate those beliefs in order to acquiesce with the grooming policy.” Arkansas’ correctional facility allows inmates to wear a neatly trimmed mustache and a short beard only in the case of skin problems. Holt is challenging the correctional facility’s policy under the Religious Land Use and Institutional Persons Act (RLUIPA), which states that the government shall not enforce a “burden on the religious exercise of a person” within an institution unless it fits in the two-prong test. The two-prong test states: the burden is in 1) furtherance of a compelling government interest; and 2) is the least restrictive means of furthering that compelling governmental interest.

The government will argue that there is a significant government interest and point out that grooming policies prevent inmates from hiding contraband, quickly changing appearances, and that any special privileges to inmates could result in being targeted by other inmates. On the other hand, Holt will focus on the second part of the test and show that the means used are not the least restrictive in furthering that interest. For example, other jurisdictions allow for beards longer than what Holt is asking for, having inmates with beards vigorously run their hands through their beards upon inspection, and authorities could also take pictures of inmates before and after their beards in case the inmates decide to shave. Furthermore, Holt’s hand written brief goes through numerous case precedence where courts have struck down policies banning beards in prisons.

The Becket Fund for Religious Liberty is representing Mr. Holt, who has also represented Hobby Lobby, where the court ruled that corporations could refuse to provide contraception coverage to their employees on religious grounds. The Supreme Court should apply to Holt’s case the same two-prong test that it applied in the Hobby Lobby case. However, corporations and inmates have different levels of security interests and the Court will assess religious freedom in a higher context as compared to a publicly traded corporation. “After going out on a limb by providing newfound rights to corporations,” said Marci A. Hamilton, a law professor at Cardozo Law School said, “are they now going to turn around and say that prisoners can’t grow beards?” 

However, if the Court rules in favor of Holt, would that open up doors for others to pressure law enforcement or prison officials to allow for new forms of religious exceptions? For example, similar to this case, would Sikhs in prisons now request to grow beards, wear turbans, and carry a Kirpan (sword). Or would Zoroastrians in prisons be able to ask for a fire temple. What if these laws were to be applied to school settings? For example, would Muslims or Jews be able to pressure schools to allow Muslim/Jewish students to take extra breaks for mandatory prayers? Wherever these laws take us, religious freedom has found its place in this country and it is here to stay.

Hassan Mukhlis
Staffer, Criminal Law Practitioner

Photo by Broadhead, via Wikimedia Commons