Court to Rule on Exceptions to Warrant Requirement for GPS Tracking

The U.S. Court of Appeals for the 3rd Circuit is set to become the first federal appellate court to answer the question left open by the Supreme Court in United States v. Jones. Last year, the Court held in Jones that a Fourth Amendment “search” occurs, and a warrant is required, when a GPS tracking device is attached by law enforcement to a person’s vehicle and then used to track its movements. The Court did not consider when, if ever, that type of search would be exempt from the Constitution’s warrant requirement.

Last month, the 3rd Circuit heard oral arguments on that question. It is expected to issue its decision later this year.The appeal relates to the prosecution of Harry, Michael, and Mark Katzin — three brothers charged with the burglary of a Rite Aid pharmacy in Pennsylvania. In 2009, authorities began investigating a rash of pharmacy burglaries in the Northeast. Most of the crimes targeted Rite Aid stores and appeared related because each occurred after someone had cut the wires to the pharmacy’s alarm system. Eventually, authorities identified Harry Katzin as a person of interest. He had been implicated in suspicious activities involving other Rite Aid pharmacies and was known to keep electrician’s tools, gloves and ski masks in his van.

Initially, agents physically tracked Katzin’s movements. Then they decided more comprehensive surveillance was needed, so they attached a GPS tracking device to Katzin’s bumper and waited. Two or three days later, the tracking device showed that the van had stopped at a Rite Aid store in Hamburg, Pa. After the van left, one agent drove to the store to confirm it had been burglarized while state troopers followed the van onto the highway. When the burglary was confirmed, troopers stopped the van and arrested the Katzins. Only then did authorities obtain a search warrant, which led to their discovery of merchandise from the Rite Aid store, parts of the pharmacy’s alarm system, and Schedule II drugs.

In April 2011, the brothers were charged with pharmacy burglary and possession of Schedule II drugs with intent to distribute. They filed a pretrial motion to suppress the evidence found in the van. At that time, neither the 3rd Circuit nor the Supreme Court had decided whether the attachment and use of an external GPS tracking device constitutes a Fourth Amendment search. In early 2012, the Jones Court made clear that it does. Applying Jones, the trial judge granted the Katzins’ motion, and the government appealed.

On appeal, the government argues that the search in question, i.e., the attachment and use of the GPS device, falls within one of two exceptions to the warrant requirement. Under the “reasonable suspicion” exception, a warrantless search may be conducted under limited circumstances if the minimal intrusion on the individual’s privacy is outweighed by a legitimate government interest. In this case, the government contends, the “trespass” to Katzin’s van was minimal because it involved the placement of a magnetic GPS device on the bumper. Subsequent monitoring of the device was minimally intrusive because it revealed only the location of the van — information that could be obtained by physical surveillance. In the government’s view, these minimal intrusions were outweighed by the government’s interests in investigating crime.

The government also argues that the search falls within the “probable cause” exception. Under that exception, officers may conduct a warrantless search of an automobile if there is probable cause to believe it contains contraband or if exigent circumstances make a warrant application impractical. The government claims that no warrant was required in this case because officers had probable cause to believe that Katzin would use his van to burglarize another Rite Aid pharmacy.

The Katzin brothers counter that neither exception applies. First, the “reasonable suspicion” exception does not apply because the officers installed the device without a reasonable, articulable suspicion that criminal activity was afoot at the time of installation. Instead, the officers proceeded on a hunch that turned out to be right. The Constitution requires more than that.

The “probable cause” exception does not apply because, when the officers installed the device, they had no reason to believe there was contraband in the van or that the van was readily mobile, which might have made a warrant application impractical. As the Katzins point out, the officers attached the device in the dead of night on a deserted street. If the officers had evidence to support probable cause under those circumstances, they should have applied for a warrant.

Our sense is that the trial court will be upheld. The Fourth Amendment’s baseline requirement is that searches be conducted pursuant to a valid warrant supported by probable cause. These facts do not appear to support an exception. As the trial judge noted, the government argues for application of the “reasonable suspicion” exception based on its general interest in efficient law enforcement. The government did not prove that the special needs of this case required the warrantless intrusion visited on the defendants.

Likewise, the government argues for application of the “probable cause” argument based on the officers’ general suspicion that Katzin would use his van to commit a crime in the coming days, weeks, or months. The government did not prove that the officers had probable cause to believe that a crime was in progress when the device was attached. If courts do not hold the line on these exceptions, the Fourth Amendment will be eviscerated.

Court: Data on Unsecured Network May Qualify for 4th Amendment Protection

The vast increase in the use of wireless data networks has led to new legal issues regarding network users’ right to privacy. A recent opinion issued by the U.S. District Court for the District of Oregon indicates that, under some circumstances, individuals on an unsecured wireless network have a reasonable expectation of privacy entitling them to Fourth Amendment protection. As a result, police officers must obtain a warrant prior to accessing files on that network.

In United States v. Ahrndt, defendant John Henry Ahrndt moved to suppress evidence that a police officer obtained by accessing Ahrndt’s wireless home network and opening files without a search warrant.

In February 2007, one of Ahrndt’s neighbors connected to Ahrndt’s unsecured wireless internet network. When she opened her iTunes program, she was able to see “shared” files from Ahrndt’s iTunes and LimeWire accounts, and saw a number of titles indicative of child pornography.

The neighbor did not open any of the files, but called the police to report what she saw. A deputy came to her house and she showed him the file names as she had seen them. The deputy asked her to open one of the files. When she did, it opened an image of child pornography.

The deputy questioned the neighbor about whom the unsecured wireless network might belong to. She indicated that the network had been available since she moved into the building, and at the time Ahrndt’s home was the only other one that was occupied. The police ran the license plate of a car parked outside of the home and identified it as belonging to Ahrndt, a convicted sex offender.

Using a general description of what the neighbor and deputy recalled seeing in the list of file names, the police applied for and received a search warrant to access the wireless network again in order to get an IP address. The police then served a summons on the Internet provider. The provider disclosed that Ahrndt was the subscriber in question.

Using that information, the police obtained a search warrant for Ahrndt’s home. They ran a forensic search of his computer and identified images of child pornography in various folders. The forensic report did not mention either iTunes or LimeWire.

In considering the motion to suppress the evidence obtained through the initial warrantless search, the court concluded that it would have been appropriate for the deputy to view the titles of the files without a warrant, since a private party (the neighbor) had already viewed those files and told the police about them. However, the court concluded that it was a violation of Ahrndt’s Fourth Amendment rights for the police to instruct the neighbor to open the file, which she had not previously done. The opened image was no longer within the purview of private search, but a government search.

The court also found that Ahrndt’s privacy expectations were not eliminated by accessing an unsecured wireless network. There was no evidence that Ahrndt had intentionally enabled sharing for those files; rather, the default setting of the LimeWire program enabled sharing. It was Ahrndt’s reasonable belief that those files were contained only on his hard drive, and not shared on a public network. The court said that “[i]n short, the government does not dispute a person has a reasonable expectation of privacy in the files on his home personal computer.”

The court concluded that, lacking specific file names and a description of images, a magistrate would not have found probable cause to issue a search warrant. The only evidence that the police viewed lawfully was the file names, which the neighbor and deputy could not remember with specificity. Since the “partial recollections and characterizations” were too general to support a warrant, all related evidence from the unlawful search must be suppressed.

The court came to the right conclusion on this one. Our reliance on the Internet has become such that what is on our computers is as personal and private as the inside of our homes. The government is no more entitled to search our computer without probable cause than to search our homes. This case does not represent a free pass to intentionally share information on wireless networks and then assert Fourth Amendment rights when the government comes knocking. Rather, it is only that information to which an user has a reasonable expectation of privacy—such as files that he is not aware are accessible to others—that is protected against the government’s unlawful search and seizure.

It’s easy to see how this has implications for potential white-collar cases: the government might try to use financial information unintentionally made available to a neighbor through an unsecured network as a basis to initiate a financial fraud investigation. We hope that the courts will rely on this case and suppress any evidence obtained as a result of this type of unlawful search.

Does ‘Speech or Debate’ Trump the Right to Defend Oneself in Court?

On February 5, 2013, the Bipartisan Legal Advisory Group of the U.S. House of Representatives filed a brief urging the U.S. Court of Appeals for the D.C. Circuit to hold that U.S. legislators and their aides cannot be forced to testify about their legislative activities, even when their expected testimony might help exonerate a criminal defendant.

The case raises interesting questions about the balancing of constitutional imperatives – here, the separation of powers and a criminal defendant’s right to present a defense. Fraser Verrusio, a former House staffer, is hoping for a balance struck in favor of defendants’ rights.

In 2011, Verrusio was convicted of accepting an illegal gratuity in connection with his duties as then policy director of the House Transportation Committee. According to the prosecution, Verrusio accepted and failed to report an all-expenses-paid trip to New York City that included a ticket to the World Series and an outing to a strip club. The trip was funded by United Rentals, a construction-equipment company that had stepped up its lobbying efforts to get favorable amendments into the federal highway bill. United Rentals wooed senior staff member Verrusio, who reportedly advised the chair of the House Transportation Committee (as well as the committee) on legislative strategies and policy. Prosecutors alleged that when Verrusio accepted the $1,200 trip, he knew that United Rentals was compensating him for future assistance on the highway bill.

One key piece of evidence against Verrusio was an e-mail that United Rentals lobbyist James Hirni sent to Vivian Curry, legislative director for then-House Committee member John Boozman. In his e-mail, Hirni said, “I have spoken to [Verrusio] and he is good to go. I am resending him the language in the Senate bill, with changes which would represent the 100 percent victory for [United Rentals. Verrusio] asked us to give him the language plus what we would want in the perfect world.”

To address the possible inferences from that e-mail, Verrusio’s attorneys issued a trial subpoena to Curry. The defense expected her to testify that Verrusio had not inserted himself into the legislative process and had not pressured her. But Curry moved to quash the subpoena on grounds that her testimony was privileged under the Speech or Debate Clause of the Constitution. She argued that the testimony sought was protected because it concerned “information gathering for legislative purposes.”

Verrusio countered that the inability to call Curry would violate his rights to due process and to present a complete defense. During the hearing on Curry’s motion, the defense made a potentially critical error when it acknowledged the “high hurdle” imposed by the Speech or Debate Clause and then conceded that the clause “in fact did “appear to cover [the e-mail] communications.” The court held that Curry had properly invoked the privilege and could not be forced to testify.

After the jury returned a guilty verdict on all counts, Verrusio appealed. Among other things, he claims that the trial court erred when it prevented him from calling Curry as a witness. In his view, one of two results must follow. First, Verrusio contends that protections under the Speech or Debate Clause are not absolute but, in some cases, must give way to a defendant’s right to compulsory process. He argues that trial judges should balance a defendant’s need for otherwise-protected testimony against the potential burden on Congress. When the case involves an aide’s testimony regarding informal, passive information gathering from a third party, the potential burden is minimal to non-existent. In such cases, the next question to ask is whether the testimony sought is material. In cases like his — where the jury verdict is already of questionable validity — the “materiality” bar is lower. Thus, he argues, any evidence calling into question the government’s theory could have created reasonable doubt.

Verrusio contends in the alternative that, if the Speech or Debate Clause privilege is absolute, the indictment must be dismissed.

The prosecution replies that Verrusio waived his right to appeal the trial judge’s order to quash. Not only did the defense concede that Curry’s testimony was protected; it first introduced the “balancing test” argument on appeal. Therefore the appellate court may not consider it.

Speaking as friends of the court, the House’s Bipartisan Legal Advisory Group framed the issue as one upon which “the whole American fabric” rests – separation of powers. The decision is simply whether an individual’s right to evidence trumps American liberty in general – an impossible bar to meet. After summarizing the history of the Speech or Debate Clause, the House brief argues that the clause is absolute, regardless of whether the proceedings are civil or criminal. Moreover, the testimony Verrusio sought from Curry was unquestionably protected because it concerned “activities that were ‘an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings.’” According to the House brief, no court has held that the Speech or Debate Clause privilege is subject to a balancing test. And Verrusio’s reliance on cases recognizing some flexibility with respect to executive privilege is unavailing since executive privilege is not expressly mandated in the Constitution.

But the House brief glosses over the fact that executive privilege is rooted in separation of powers just like the speech or debate privilege. That leaves the question of why the separation of powers in executive-privilege cases need not be guarded so jealously.

Courts decline to address thorny constitutional questions if they can resolve a case on other grounds. It seems likely that the D.C. Circuit will home in on Verrusio’s alleged failure to preserve his argument and save the speech or debate issue for another day. Verrusio’s reply brief is due to be filed by March 13, 2013; the D.C. Circuit will likely issue its decision sometime mid-year.

Court Hears Argument on N.J. Law Permitting Sports Betting

On December 18, 2012, oral arguments were heard in the federal lawsuit filed by the professional sports leagues and the NCAA against New Jersey, after the state passed a law that would legalize sports betting in the state’s casinos and racetracks. Last week, U.S. District Judge Michael Shipp ordered that oral argument would be limited to the issue of whether the sports leagues have standing to bring the suit.

The leagues filed suit in August arguing that the New Jersey law was in direct contravention of the Professional and Amateur Sports Protection Act (PASPA) of 1992, a federal statute that imposes a ban on sports betting unless the individual state had its own sports betting scheme in place between 1976 and 1990.

New Jersey has argued in court papers that the leagues have failed to allege that they will suffer a concrete injury as a result of the sports betting law. New Jersey asserts that the leagues have failed to show a particularized injury. The state has argued that given the proliferation of sports gambling, the harms that the leagues claim would flow from the new gambling law would occur in any case, regardless of the law or any relatively modest increase in legal sports betting that it may cause.

The leagues’ lawyer, Jeffrey Mishkin, started his argument today by stating that the standard for the leagues to show that they have standing is an “identifiable trifle” in how the law would affect them. Mishkin argued that the leagues do not have to prove damages or injury for standing, they only have to show that identifiable trifle.

The leagues’ arguments focused on two main points: that the leagues have standing because their games are the vehicles for the betting and that in passing PASPA Congress explicitly authorized the leagues to bring action against the states.

The leagues argued that they will suffer an injury to their reputations if there is an expansion of legalized gambling. Mishkin argued that the fact that New Jersey chose to exempt professional and collegiate sporting events held in the state, as well as collegiate sporting events held outside the state involving schools from New Jersey, from betting, as evidence that the state believes that gambling on these events can cause problems.

Mishkin argued that when Congress passed PASPA it explicitly acknowledged that the leagues would have a personal stake in gambling laws because the perception of the leagues would be adversely affected by gambling. Mishkin said that “every dropped pass” and “every missed free throw” would raise suspicion.

Ted Olson, a former United States Solicitor General arguing on behalf of New Jersey, said the state would be regulating conduct that is already occurring. Olson cited statistics showing how prevalent sports betting is in this country, both legally and illegally.

Olson said the leagues needed to demonstrate more than just the perception that the law would hurt their business; they needed to show an “actual, identifiable, particularized, concrete injury” from the law to have standing to bring the case. He emphasized that Congress cannot remove Article III standing requirements, as there needs to be a finding by the court that the injury is specific and supported by facts.

Olson argued that the leagues are already thriving amidst a huge sports gambling market and the state would be bringing the black market gambling into the light and regulating it. Olson argued that there is no evidence that gambling has hurt the leagues and pointed out the prevalence of fantasy sports, which the leagues have largely embraced. He also pointed out that the leagues are in regular contact with the Las Vegas sports books to monitor shifts in betting on their games and this cannot happen in places where sports betting is occurring on the black market.

There was extensive discussion of the 2009 Third Circuit ruling in Office of the Commissioner of Baseball v. Markell, where the court held that most of Delaware’s plan to expand its sports betting offerings violated PASPA. Delaware, a state that had a PASPA exemption because it had a betting scheme in place before PASPA’s enactment, sought to offer single game bets and bets on any professional or amateur sporting event other than NFL games. This was rebuffed by the court because these were betting schemes that were not in place at the time that PASPA went into effect. Standing was not an issue discussed by the court in its opinion in Markell, and lawyers for the league implied today that this was because standing of the leagues was so obvious that the court did not need to address it. Judge Shipp also directly asked the state how it could reconcile the state’s argument that the leagues lack standing with the Third Circuit decision.

The Department of Justice has until January 20 to intervene, if it chooses to. New Jersey regulators have stated that they will begin granting licenses to offer sports betting beginning on January 9.

Judge Shipp stated that a written decision on the standing issue would be released by Friday, December 21. It remains to be seen how the court will rule. Based on observations from court today, it seemed the judge is inclined to believe that the leagues have the sufficient “identifiable trifle” to challenge the law.

If the court does find that the leagues have standing to bring the suit, the court will proceed to hear the case on the merits and will likely have to decide the constitutionality of PASPA.

DOJ Should Not Withhold Information From Defense in High-Profile Leak Case

Lawyers for Stephen Jin-Woo Kim, a former federal contractor employee accused of unlawfully disclosing sensitive information, recently filed a motion in the U.S. District Court for the District of Columbia criticizing the government’s withholding of information in the case and asking the court to order the government to produce the documents. The government should not be permitted to withhold this type of valuable, discoverable information from the defense in this “leak” case.

Kim was indicted in August 2010 with unlawfully disclosing national defense information to a reporter for a national news organization and making false statements to the FBI. If convicted, Kim faces up to 10 years in prison for unlawful disclosure of national defense information and up to five years in prison for making false statements. Kim was an employee of a federal contractor who was on detail at the State Department at the time of the alleged disclosure of classified information in June 2009.

Prosecutors in the case have said that Kim’s trial is not likely to occur until 2013.

According to the indictment, in June 2009, Kim knowingly and willfully disclosed to a national news reporter “Top Secret-Sensitive Compartmented Information” that concerned the military capabilities of a foreign nation and intelligence that “could be used to the injury of the United States.” The indictment further alleges that, in September 2009, Kim made false statements to the FBI when he denied having any contact with the reporter since a meeting in March 2009. The government alleges that he has had repeated contact with the reporter in the months following the meeting.

The indictment was part of a series of investigations by the federal government into unauthorized information leaks to media outlets during the Obama administration. After the announcement of the indictment, lawyers for Kim criticized the government for criminalizing an occurrence “that happens hundreds of times a day in Washington.”

Discovery in the case began in October 2010 and is continuing. Recently, without prior notice to defense counsel, the government filed a motion seeking the court’s permission to withhold otherwise discoverable classified information from defense counsel. In its motion, the government sought an ex parte review, even though lawyers for Kim all had security clearances and classified discovery had been ongoing for close to two years subject to a protective order. Counsel for Kim noted that over the past 22 months, the Department of Justice has produced over 3,000 pages of classified material to Kim’s legal team.

The government should not be permitted to withhold discoverable information without making a strong showing that there is a need to do so. Here, the government has made no showing and has “not provided defense counsel with any information about the nature or subject” of the information withheld, defense counsel say. Especially given the protective order and the security clearances of Kim’s counsel, it seems inexcusable to allow the government to continue to withhold information without justification.

Brady Rights Require Attention, but This Bill Is Flawed

While the prosecution of former Senator Ted Stevens is long over, the fallout from the prosecutorial misconduct in that case continues. Congress is now considering legislation that attempts to ensure that federal prosecutors comply in a meaningful way with their obligations under Brady v. Maryland and its progeny. The legislation has some provisions that could possibly help protect Brady rights, but even if it passes – which appears doubtful – the bill is unfortunately more of a political gesture than an effective tool for protecting the rights of criminal defendants.

Perhaps the most significant provision in the proposed Fairness in Disclosure Act is one that addresses the timing of Brady disclosures. Under current practice, prosecutors often delay the required disclosures of exculpatory information as long as possible. Given that the only time limitation appears to be the ill-defined requirement that information must be provided within a reasonable time for the defense to use it at trial, the law effectively allows the government to disclose Brady information almost any time before trial. Because the legislation requires the disclosure of such information “without delay after arraignment,” it has the potential to lessen the incidence of late disclosure of Brady information by prosecutors. The proposed bill’s requirement that Brady information be provided before the entry of a guilty plea is also commendable.

Other provisions that address the location and possession of the information at issue may also be helpful. The act would make clear that information contained in witness statements must be disclosed, and may not be withheld until it is provided – after a witness testifies at trial – pursuant to the Jencks Act. The bill also requires that prosecutors disclose not only information that they know but also information that they should know – an attempt to prevent prosecutors from insulating themselves from exculpatory information. The proposed law also makes clear the requirement of disclosure not only of the information in possession of the prosecutors and the investigatory agency but also of information in the hands of any other agency that participates in the investigation.

Other provisions, such as those relating to whether inadmissible evidence must be disclosed and the remedies for violation of the act, also have the potential to have a favorable impact on Brady compliance.

The problem is that, in the end, the Fairness in Disclosure Act will be effective only to the extent that it clearly defines what information falls within the scope of prosecutors’ obligations to disclose. And in that respect, the bill largely substitutes one ambiguous standard for another. On the one hand, it discards the approach that turns entirely on “materiality” of the information – a concept that works for appellate courts after the fact but is an impossible standard to enforce against prosecutors before trial. On the other hand, the bill’s requirement that prosecutors disclose information that is favorable to the defense as to guilt or sentencing does not solve the real obstacle to ensuring that defendants’ Brady rights are protected. That’s because it still leaves it in the hands of prosecutors – who may not know what defense the defendant will utilize – to determine whether a piece of information is favorable or not. To many criminal defense lawyers, that is the real problem that causes problems with Brady compliance even with well-intentioned prosecutors.

Despite these flaws, a number of organizations, including the American Bar Association, have expressed support for this bill. Nevertheless, at least one website that carries predictions on the fate of legislation puts the likelihood of passage of the bill at 2 percent. It is surely a good development to have politicians and the public focused on the need for reform to protect criminal defendants’ rights, but the Fairness in Disclosure Act may not ultimately be the solution to this issue.

Justice Would Be Served by an ‘Open File’ Policy for Prosecutors

A couple of years ago, the U.S. Department of Justice made an effort to systematize and improve its discovery obligations under Brady v. Maryland, the 1963 Supreme Court case that requires prosecutors to disclose information in their files that would tend to exculpate criminal defendants. A U.S. attorney, speaking at a conference of defense lawyers, commented at the time that the department takes its Brady obligations seriously.

We replied then that in our view, the new Brady guidelines merely perpetuated the status quo rather than promising real change or a system in which prosecutors make significant disclosures to defendants before trial of the contents of their files.

“Whether criminal defendants will obtain discovery of all materials to which they are entitled will still be largely dependent on the judgments of the individual prosecutors,” we wrote. “Perhaps the answer is that the government should simply err in the direction of providing open discovery of its files to defendants.”

Just the other day, The New York Times editorialized in favor of such “open-file” policies, in which prosecutors turn over to defense lawyers all information favorable to the defense, regardless of whether that information would directly affect the outcome of the case.

In the same vein that we wrote in 2010, the Times said that the Justice Department “continues to take half-measures in response to its own failures to meet disclosure requirements.”

The department, while it adheres to the letter of the Brady case, says its policy is to turn over only those documents that are both exculpatory and material to the result of the case. The Times points out that this is inadequate. Since 96 percent of criminal cases end in a plea bargain, the rule “puts defendants at a disadvantage in negotiation: without access to information in the government’s files, they don’t know the evidence they face and can’t assess their odds at trial.”

We agree. An open-file policy makes sense for prosecutors at both the federal and state levels. Exceptions would need to be made to prevent, for example, the identity of a confidential informant or similar information. But we believe that a broad disclosure rule would help bring into reality a portion of the Justice Department’s mission statement – “to ensure fair and impartial administration of justice for all Americans.”

High Court: Police Tracking of Suspect Via GPS Requires Warrant

Last November, we discussed the U.S. Supreme Court’s oral argument in United States v. Jones, which posed the question of whether police need to obtain a warrant before attaching a GPS device to a suspect’s vehicle during a criminal investigation.

We noted that in this case, 21st-century technology had come face to face with the constitutional requirements of the Fourth Amendment. We were hoping that the high court would uphold the U.S. Court of Appeals for the D.C. Circuit and hold that this action is a search that requires a warrant, but we took a pass on predicting what the Court would actually do.

On January 23, 2012, the Court decided the case – unanimously against the government and in favor of defendant Antoine Jones. The decision is fairly gratifying for those of us who believe it desirable to curb prosecutors’ power by imposing restrictions upon it, including, where appropriate, the requirement of a judge-issued warrant.

It turns out that both the advocates of the original-intent approach to constitutional interpretation, epitomized here and in general by Justice Antonin Scalia, and those who prefer the doctrine of the “living Constitution,” led here by Justice Samuel Alito, agree that the use of a GPS device by the government constitutes a search and requires a warrant.

Scalia, writing for a majority of the Justices, observed that prosecutors had intruded upon Jones’ property in way that would have been a “trespass” under common law.

Prosecutors “physically occupied private property for the purpose of obtaining information,” Scalia wrote. “We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” And for Scalia, that fact alone was enough to decide the case.

Alito, joined by three Justices who concurred in the result, used quite a different line of reasoning and sharply criticized Scalia’s majority opinion, saying that ironically, it relied upon 18th-century tort law to decide a case involving 21st-century technology.

“This holding, in my judgment, is unwise,” Alito wrote. “It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.”

Instead, Alito wrote, he “would analyze the question presented in this case by asking whether [Jones’] reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.” Alito observed that for decades, the Court has invoked the concept of “reasonable expectations of privacy” in a number of cases to define the nature of a “search” under the Fourth Amendment and to expand the definition of “search” to actions that do not involve a trespass to someone’s property.

Even though Alito is often identified with the pro-prosecution, conservative wing of the Court, he took the defendant’s side in this case. As our blog post last November noted, at oral argument Alito expressed concern about how easy it is these days “to amass an enormous amount of information about people” by the use of today’s technology.

Alito’s opinion followed similar lines. In the absence of legislation about police use of GPS tracking, he wrote, “The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.”

This is good news for constitutional rights and for defendants. Whatever approach one takes to the Fourth Amendment, it’s clear that prosecutors can’t attach a GPS to a suspect’s car without a warrant.

Judge Dismisses Lindsey FCPA Case, Finding Prosecutorial Misconduct

In May 2011, a federal jury in Los Angeles convicted Lindsey Manufacturing Co., its president Keith Lindsey, and CFO Steve Lee, on foreign bribery charges for their dealings with Mexico’s state-owned electricity utility, Comision Federal de Electricidad. The prosecutors claimed that Lindsey Manufacturing retained Enrique Aguilar, a Mexican company representative, after repeatedly failing to win contracts legitimately – and that the defendants knew that the sales commission they paid to Aguilar was used to cover more than $5 million in bribes to officials at the Comision.

The defendants faced as long as five years in prison for each of five counts of bribing a foreign official, as well as five years for a conspiracy count. However on December 1, 2011, U.S. District Judge A. Howard Matz, who oversaw the jury trial, dismissed those convictions with prejudice due to government misconduct after ruling on the defense’s Motion to Dismiss and Supplemental Brief in Support of Motion to Dismiss.

In his remarkable order dismissing the charges, Judge Matz acknowledged that “most district judges are reluctant to find that the prosecutors’ actions were flagrant, willful, or in bad faith,” but he concluded that “it is with deep regret that this Court is compelled to find that the Government team allowed a key FBI agent to testify untruthfully before the grand jury, inserted material falsehoods into affidavits submitted to magistrate judges in support of applications for search warrants and seizure warrants, improperly reviewed e-mail communications between one Defendant and her lawyer, recklessly failed to comply with its discovery obligations, posed questions to certain witnesses in violation of the Court’s rulings, engaged in questionable behavior during closing argument and even made misrepresentations to the Court.”

This is an extensive laundry list of serious allegations against government prosecutors. Over the summer, we wrote about some of the most significant misconduct by the prosecution, such as its failure to produce the transcript of some of FBI Special Agent Susan Guernsey’s October 2010 grand jury testimony until seven weeks after the jury entered its verdict in 2011. Agent Guernsey testified before the grand jury a total of four times, and her testimony contained a number of material misrepresentations and outright falsehoods that led to the indictment. The prosecution’s failure to turn over testimony from one of those sessions until after the conclusion of the trial hindered the defense’s ability to fully cross-examine her during the trial.

Although it was the prosecution’s continuous misrepresentations and misconduct which are ultimately at fault for these wrongful convictions, Judge Matz admirably took responsibility for not recognizing the misconduct sooner. He said,

“[W]hen a trial judge managing a large docket is required to devote a great deal of time and effort to a fast-moving case that requires numerous rulings, often the judge will miss the proverbial forest for the trees. That is what occurred here. This Court was confronted with so many motions challenging the Government’s conduct that it was difficult to step back and look into whether what was going on reflected not isolated acts but a pattern of invidious conduct. … The Government has acknowledged making many “mistakes,” as it characterizes them. “Many” indeed. So many in fact, and so varied, and occurring over so lengthy a period (between 2008 and 2011) that they add up to an unusual and extreme picture of a prosecution gone badly awry.”

While it is somewhat heartening that a federal judge would both straightforwardly reprimand federal prosecutors for an egregious series of acts of misconduct and take the blame for his own role in not stopping it sooner, it nonetheless remains an incredible injustice that that defendants were brought to trial, convicted, and faced jail time before this misconduct was adequately addressed. The government has already appealed the case to the Ninth Circuit. We can only hope that the appeals court agrees with Judge Matz and takes a firm stance against prosecutorial misconduct.

Ifrah Law Blog Wrap-Up for November 2011

In November 2011, we at Ifrah Law expressed our views on a number of current issues in our blogs, Crime in the Suites and FTC Beat. This post summarizes and wraps up our thoughts from the month.

ACLU Wins FOIA Appeal on Prosecutors’ Use of Cell Phone Location Data

The Justice Department must turn over the names and docket numbers of numerous cases in which the government accessed cell phone location data without probable cause or a warrant.

Read the full post here on the Crime in the Suites blog.

Options for Suing the Federal Government Under Bivens Unlikely to Expand

U.S. Supreme Court argument indicates that the Justices are unlikely to extend Bivens to cover cases against private employees.

Read the full post here on the Crime in the Suites blog.

Judge Imposes 15-Year Sentence in FCPA Case; Appeal to Follow

This case will test the Justice Department’s expansive definition of “foreign official” under the statute.

Read the full post here on the Crime in the Suites blog.

High Court Hears Argument in GPS Fourth Amendment Case

The Justices grapple with issues of search and seizure in an online, wired world.

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In Appeal of Construction Fraud Case, DOJ Seeks Tougher Sentences

This case, arising from Boston’s “Big Dig” project, will test the limits of a trial judge’s sentencing discretion.

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Self-Regulation Reigns, for Now, on Consumer Data Privacy Issues

The online advertising industry is inching its way to more comprehensive policies regarding the collection of consumer data.

Read the full post here on the FTC Beat blog.

Google, Microsoft Assume Roles of Judge, Jury and Executioner on the Web

The Internet giants cancel the Web connections of companies that are accused by the government of mortgage fraud but have not been convicted.

Read the full post here on the FTC Beat blog.

New House Hearing Shows Strength of Hill Support for Legal Online Gaming

Many members of Congress remain serious that legal and technical obstacles can be overcome and that legislation can be passed in this area.

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Convicted of Fraud but Changed Their Lives; Appeals Court Takes Note

A couple committed mortgage fraud back in the late ‘90s. The 7th Circuit gives them sentencing credit for self-rehabilitation.

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More Big Pharma Companies Cough Up Big Dollars in DOJ Settlements

How high will these settlements go? The government has the power to strong-arm drug companies into settlements. How much will it demand?

Read the full post here on the Crime in the Suites blog.