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The interpretation of the 4th Amendment and the Digital Age

Posted By Steven Brill || 10-Feb-2012

Recently, the US Supreme Court, in U.S. v. Jones , decided a case which underscored the developing need to reconcile innovative, technological investigatory techniques and our right to be free from “unreasonable” searches and seizures. In Jones, two men were convicted of a conspiracy to possess and distribute substantial amounts of cocaine and crack. One defendant argued that his conviction should be overturned because the police violated the 4th Amendment prohibition of “unreasonable searches” by tracking his movement 24 hours a day for 4 weeks with a GPS device they had installed on his Jeep without a valid warrant. In a surprise ruling, Justice Scalia (more surprising) for the majority held that attaching a GPS device to a vehicle was akin to a “trespass and then using that device to monitor the vehicle’s movements constitutes a 4th Amendment search. So, because fruits from these movements led to the defendant’s conviction, the conviction had to be reversed.

The bigger picture here is the very fact that law enforcement has taken what is now a common tool used by everyday drivers (the GPS) and utilized it an investigative technique to track the comings and goings of crime suspects. Indeed, the installation of a GPS in the vehicles of unsuspecting targets vehicles, has become a popular form of surveillance for law enforcement – evidence that our New York criminal defense lawyers at Sullivan & Brill are constantly combating. The use of the GPS underscores a very real and rapidly growing trend – which is that that the government has clearly taken full advantage of the advent of technological advances and gadgets in order to build cases and gather evidence against criminal defendants.

As one can imagine, the government’s use of technology is not limited to the GPS. Just as frequently, federal law enforcement seeks warrants to acquire cell-tower records from cell phone companies who store all of that data. In fact, the federal criminal lawyers at Sullivan & Brill are actively defending a client in the Eastern District of New York where we have filed a motion to set aside a guilty verdict regarding the issue of whether the government needs probable cause before a cell tower warrant can be gotten. Notably, the technique of using cell phone data has become so important to law enforcement that, recently, the FBI in Arizona set up a fake cell phone tower, or a “stingray” to zero in on a suspect’s wireless card, and thus determine a suspect’s whereabouts. For those who have not yet experienced the “Stingrays,” they are designed to locate a mobile phone even when it's not being used to make a call. The point being that by gathering this cell phone tower data, law enforcement can pinpoint the user’s particular location during a particular time. Needless to say, not a very welcomed evidence to any criminal defense attorney.

And the list keeps growing: the NYPD is developing a futuristic device to detect concealed firearms under the clothing of suspects using heat-seeking technology. The device, which is reportedly slated to be mounted on police vans, scans infrared, or heat rays that are naturally emitted from the body. Metal objects, like guns, would block the heat, creating an outline where guns are usually possessed.

Clearly, state and federal law enforcement are developing ways to take full advantage of the digital age and all of its innovations when conducting investigations of targets of their investigations. The trick, however, for the New York criminal lawyers at Sullivan & Brill is to answer how these technological advancements should be reconciled with our 4th Amendment rights? With every government’s decision to use this technology in investigating and prosecuting cases, significant issues for our clients arise, such as: Are these techniques considered searches at all? In other words, will thermal heat seeking cameras act as a less-invasive substitute for the traditional pat-down? Has our reasonable expectation of privacy become less of an expectation - especially when we broadcast our thoughts and movements on “Facebook,” texting and emailing on a daily basis? And with less intrusion and more limited expectation of privacy, will Courts low the lower the probable-cause standard to one that is easy for law enforcement to meet?

These questions are in the process of being answered in cases like Jones. But, one thing is clear: we should all expect that the laws surrounding 4th amendment search issues will change as rapidly and dramatically as the new technology itself.