3/20/12 FOR IMMEDIATE RELEASE:

The Fourth Amendment to the United States Constitution provides that:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

“The basic purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Michigan v. Tyler, 436 U.S. 499, 504; 98 S.Ct. 1942, 1947 (1978).

Until recently, court decisions had supported the government's ability to use tracking devices without a defendant's knowledge. For example, regarding the use of electronic surveillance devices, the Supreme Court has previously found that placing a radio transmitter inside a can of chloroform sold to a defendant, and then following the vehicle in which the can was placed does not constitute a Fourth Amendment search. United States v. Knotts, 460 U.S. 276 (1983). It was found that the surveillance conducted in the case amounted principally to following car on the public streets, which is not a prohibited action under the Fourth Amendment. At most, such activity is the augmenting of sensory faculties “bestowed at birth.” Further, the Court noted that one has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view. Id.(citing Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality opinion)). The Court stated that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id.

Fortunately, the recent unanimous decision issued in United States v. Jones, 132 S. Ct. 945 (2012), narrowed previous interpretations of the Fourth Amendment as applied to situations involving electronic surveillance. In Jones, police applied a GPS tracking device to a suspect’s vehicle while the vehicle was parked in a public parking lot. Police then used the GPS to track the vehicle’s movements for the next twenty-eight days. A warrant was never obtained for use of the GPS. The Supreme Court determined that the government’s installation of the GPS device on the suspect’s vehicle, and its use of that device to monitor the vehicle’s movements, constituted a search under the Fourth Amendment. Under the common-law trespassory test, the government physically occupied private property for the purpose of obtaining information. Further, the suspect possessed the vehicle at the time the government trespassed and inserted the information-gathering device.

The narrowing of the Fourth Amendment is likely to continue under the conservative stewardship under which the Supreme Court finds itself. In its decision in Jones, the Court evaluated whether conduct constituted a search based upon whether the physical intrusion at issue would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. Obviously, absent the advanced technology of today, the limits of a search in the 1700's was much narrower than it is currently.

Another frontier in the interpretation of the Fourth Amendment in regard to technology is the search of cellular telephones. In California, if an individual is arrested for any reason, the photos, e-mails and other personal data on the arrestee’s cell phone are subject to a search absent a warrant. The California Supreme Court had previously upheld this behavior. People v. Diaz, , 51 Cal. 4th 84; 244 P.3d 501 (2011). In response, he California legislature passed a law overriding the California Supreme Court, as the ruling had “legalized the warrantless search of cell phones during an arrest, regardless of whether the information on the phone is relevant to the arrest or if criminal charges are ever filed.” See S.B. 914. Under the legislation, California law enforcement officers must first obtain a search warrant when there is probable cause to believe a suspect’s portable electronic device contains evidence of a crime. The wording of the legislation specifically referred to “portable electronic devices,” defined as “any portable device that is capable of creating, receiving, accessing, or storing electronic data or communications.” Unfortunately, California Governor Jerry Brown vetoed the bill.

Despite this setback in California, the action of the California legislature, as well as the United States Supreme Court in Jones, indicates that the issue of the Fourth Amendment as applied to technology will continue to arise. As with all Fourth Amendment issues, NLPA has been at the fore in protecting the Fourth Amendment rights of American citizens.

Should you have concerns that your client’s Fourth Amendment rights have been violated, contact NLPA immediately, and we will help you in your fight for justice!

About National Legal Professionals
National Legal Professional Associates was founded in 1986 upon the belief that individuals challenged by the judicial process deserved the highest quality legal representation possible. NLPA is a technical consulting firm dedicated to the professional objective of providing criminal defense, legal counsel, research, and related work product to members of the Bar. If you or your client need assistance in preparing research on a case, NLPA is here to help you. National Legal Professional Associates also has experience in preparing research for all types of complaints and indictments. NLPA has also received outstanding consumer reviews and feedback for our assistance. If you need help, please contact us for more information about how we can assist.

Contact Info:

National Legal Professional Associates
Margaret A. Robinson Advocacy Center
11331 Grooms Road, Suite 1000
Cincinnati, OH 45242
(Phone) 513-247-0082 / (Toll Free) 1-866-663-7440 / (Fax) 513-247-9580
(Email) contactus@nlpa.com / (Web) www.nlpa.com

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