Yesterday, I spoke at a continuing legal education conference for the Georgia Association of Criminal Defense Lawyers. The topic was searches of cell phones incident to arrest.  I also discussed the  Application of the fifth amendment protection against self-incrimination when a suspect is compelled to provide a passcode to unlock a cell phone or to decrypt hard drive data.

Please contact me if you have questions or comments. Or you may comment here.

 

Yesterday, was was the best day the Fourth Amendment has had in a decade. And, while Libertarians might not be surprised who the two heroes were, others might be taken aback. In one Fourth Amendment story, the hero was Associate Justice Antonin Scalia. And in the other, the hero was tea party Junior Kentucky Senator Rand Paul. In the first story, the heroism came in the upholding of the Fourth Amendment. In the second, the heroism came in its violation. Let’s start with the story of upholding.

In an opinion authored by Justice Scalia, the United States Supreme Court unanimously held that the government must get a warrant before placing a GPS tracking device on a person’s vehicle. In reaching this conclusion, the Court held that placement of a tracking device constitutes a search. Adam Liptak, of the New York Times summarized the opinion and noted that the divided rationale for the conclusion may raise as many questions as it answers. Writing the majority opinion, Justice Scalia reasoend that “the government physically occupied private property for the purpose of obtaining information.” Others have noted that the majority’s decision to base the opinion on concepts of trespass leaves unanswered more pressing questions about expectations of privacy in the digital realm. Still, this opinion is victory for supporters of the Fourth Amendment. And it is easy for a defense attorney fighting it out in the trenches to wonder if the Fourth Amendment has been abandoned. 

Also in the news yesterday was a story of Kentucky Senator Rand Paul’s run-in with TSA at an airport in Nashville. Sen. Paul set off a body scanner, with an alert to the knee area. TSA protocal calls for a frisk in this event, which the Senator refused and requested to go back through. TSA ordered him into a cubicle. When he then used his cell phone to call staffers to report that he would not make it to an event in Washington, he was told that he would be subjected to an even more intense screening. Talk about picking on the wrong guy. Writer Jerry Pournelle notes that TSA’s action violated more than the Fourth Amendment. It actually is a violation of Article I, Section 6 of the United States Constitution to arrest or detain for questioning a US Senator in his travels to attendance in a session.

The third unlikely hero in yesterday’s Fourth Amendment story was Fox News with its 6-minute interview of Senator Paul. Well worth a watch. Sen. Paul was told off the record by TSA officials that the machine is set up to randomly alert on people. So, the mandatory detention (TSA said it wasn’t a detention. Defense attorneys will recognize law enforcement’s attempts to make something not a detention simply by giving it a different label) and pat-down was required. And it was unacceptable to send him back through. 

And for every story with a hero, there must also be a villain. Here, it is actually the Obama White House, that issued a statement yesterday in support of the TSA. In fact, in supporting the TSA, the White House referred to Senator Paul as “the passenger.” 

I’ve been a long-time Democrat. I’ve been willing to put up with their social programs because I’ve long thought that Democrats were the best hope for my civil libertarian views and for why I do my job everyday. It was certainly a good place for my hopes during the recent Bush administration. Ron Paul’s success in this primary season, Scalia’s stance on the Fourth Amendment, Rand Paul’s stand yesterday, and Fox New’s attention to the matter, is beginning to sway me. Republicans seem to be shifting to a consistent policy on small government in their opposition to large social programs and in their opposition to the ascendancy of a government police state. Where might my vote go in November?