Statutes, Technology products, & Case law

In this page, we identify various federal criminal procedure statutes, meaning of search & seizure, warrant requirements and its exceptions, third party doctrine, and case law regarding various technology products.

Federal Criminal Procedure Statutory Provisions

1. Stored wire and electronic communications and transactional records access 18 U.S.C. § § 2510-2523.

        Important statute: 18 U.S.C. § 2518 – Procedure for interception of wire, oral, or electronic communications.

2. Stored Communications Act (which amended the wiretap act) 18 U.S.C. § § 2701-2712.

        Important Statute: 18 U.S.C. § 2703 – Required disclosure of customer communications or records.

3. Foreign Intelligence Surveillance Act (FISA) 50 U.S.C. § § 1801-1813.

4th Amendment Case law for Technology Products

What is “Search” under 4th amendment jurisprudence?: A “search” under 4th amendment can be defined as any Governmental (federal or state) intrusion upon a person’s “reasonable” and justifiable expectation of privacy.

What is “Seizure” under 4th amendment jurisprudence?: A “seizure” under 4th amendment can be defined as the exercise of control by the Government (federal or state) over a person or thing.

What is “reasonable” term in search definition?: It usually requires that a “warrant” be obtained prior to search commencement.

Probable cause: The 4th amendment constitutional probable cause requirement can be articulated as the Governmental agent or officer to have knowledge of facts and circumstances along with reasonable and trustworthy information “…sufficient to warrant a prudent person to believe that the suspect had committed or was committing an offense.” Beck v. Ohio 379 U.S. 89 (1964). Probable cause can also be based on collective knowledge of officers, and need not be from a single source. United States v. Harris 585 F.3d 394 (7th cir. 2009).

Proper warrant: It need to be based on
1.Probable cause.
2.Precise on its face.
3.Supported by oath or affirmation.
4.Issued by a neutral and detached (with no conflict of interest) magistrate.
Even if there are minor technical errors, the Government’s agent reliance on the signed warrant in “good faith” will suffice.

Execution of warrant: It need to be
1. Without unreasonable delay.
2. Person, place, or a thing searched or seized must be within the scope of the warrant.

Exception to warrant requirement (still need probable cause):

1. Incidental to lawful arrest.
2. Automobile search.
3. Consent.
4. Plain-view.
5. Stop and Frisk.
6. Hot pursuit or exigent(emergency) circumstances.

Standing to challenge or suppress evidence from a search in court:
Whether a person has standing is determined based on “totality of circumstances,” that means it is not based on any single factor. Below are some of the factors for the “totality of circumstances” determination.
1. Ownership or right to possession of the place searched.
2. The place searched was the person’s home irrespective of ownership such as when renting or living with family relatives etc.
3. The person was an overnight guest of the owner or need to have privacy interest in the place searched.

Supreme Court categorized fourth amendment “search” under two set of criteria cases. They are:

1. “Persons expectation of privacy in his physical location and movements.” Carpenter v. United States, 138 S. Ct. 2206 (2018) quoting United States v. Jones, 565 U.S. 400 (2012).
2. Bright line difference “between what a person keeps to himself and what he shares with others.” Carpenter v. United States, 138 S. Ct. 2206 (2018), stating the third (3rd) party doctrine.

Third (3rd) party doctrine: An individual may have reduced expectation of privacy in information knowingly shared with others including businesses maintaining business records for profit and documentation purposes. Smith v. Maryland, 442 U.S. 735 (1979). Examples of businesses include your cellular mobile service provider, bank etc.

Pen registers: Telephone number dialing information that is stored at the telecom service provider is third party business records. There is no reasonable expectation of privacy in items that is held out in public, even to telephone service provider. Smith v. Maryland, 442 U.S. 735 (1979). Therefore, who you dialed do not come under 4th amendment reasonable expectation of privacy.

Bank records: These also come under third party business records. There is no reasonable expectation of privacy as these are held out in public under the 4th amendment. Government agent still need to satisfy lower threshold statutory requirements to get the information. Fisher v. United States, 425 U.S. 391 (1975).

Thermal Imager: The use of thermal imaging device to see from outside a home, whether a person or possible instrumentalities of crime are in a home is unlawful search. The authorities need a warrant based on probable cause for search of the home. Kyllo v. United States, 533 U.S. 27 (2001).

Global Positing System (G.P.S.) on vehicles: Supreme Court recognizes the 4th amendment protection under common law trespass. Attachment of G.P.S. tracking device to a vehicle and subsequently using the signal to monitor movements is a search because the Government “obtains information by physically intruding on a constitutionally protected area.” United States v. Jones 565 U. S. 400, 405 (2012).

Satellite based tracking: Supreme court ruled that tracking of an offender 24 hours a day and 7 days a week constitutes “search.” Need to have a warrant based on probable cause for continuation of the tracking. Grady v. North Carolina 135 S.Ct 1368 (2015).

Cell phone search incidental to lawful arrest: Supreme Court recognizes search of persons incidental to lawful custodial arrests. Search of person ensures arresting officer’s safety. “A search of digital information on a cell phone implicates substantially greater individual privacy interests than a brief physical search….” Riley v. California, 134 S.Ct. 2473 (2014). When cell phone is confiscated during lawful custodial arrest, officers cannot access the contents of the phone for anything. They can look at the phone to check whether it physically poses any danger to them during seizure. Usually a cell phone do not pose any physical harm, as such officers cannot access the contents of the phone during custodial arrest.

Cell phone tracking based on telecommunications CSLI information: Recently Supreme Court heard a case involving Cell-Site Location Information (CSLI) tracking of individual without a warrant. Under the Stored Communication Act (SCA), in order to obtain business records from the mobile phone service provider, Government only need “to offer ‘specific and articulate facts showing that there are reasonable grounds‘ for believing that the records were ‘relevant and material to an ongoing investigation‘. 18 U. S. C. §2703(d).” quoting Carpenter v. United States, 138 S. Ct. 2206 (2018). “Not every order compelling production of documents will require showing of probable cause. A warrant is required for probable cause purposes, only in [situations]… where there is a legitimate expectation of privacy in records held by third party.” Id. What is required under “probable cause,” a per-requisite for warrant purposes is much higher than that required under ‘reasonable grounds’ of Stored Communications Act business records criteria.

The CSLI collected information due to the cell site density in urban areas is extensive enough that the Government is able to pin-point the cell phone user within few meters. Given the extensive nature of personal information collected and stored under CSLI with the service provider, the court did not “extend” the application of Smith v. Maryland & Fisher v. United States cases under third (3rd) party business record doctrine.