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In Verizon v. FCC,1 the United States Court of Appeals for the District of Columbia, for the second time in four years, reviewed the Federal Communications Commission’s (FCC) authority to impose “net neutrality” rules on broadband service providers’ network management practices.2 In 2005, the FCC issued a policy statement outlining the principles of Internet neutrality applicable to all Internet service providers operating in the United States in an effort to make broadband networks “widely deployed, open, affordable, and accessible to all consumers.”3 After the policy was adopted, the FCC discovered that Comcast Corporation was limiting bandwidth to peer-to-peer sharing websites in contravention of the Internet-neutrality principles. In response, the FCC issued an order requiring Comcast to disclose sufficient details of its network management practices and to create a compliance plan to end the unreasonable practices.4 Following the issuance of the order, Comcast petitioned for judicial review of the FCC’s authority to regulate their broadband network management practices.5 The D.C. Circuit agreed with Comcast, holding that the FCC only had the authority to compel open network practices on common carriers, which broadband providers did not qualify as.6 Shortly after the D.C. Circuit’s 2010 ruling in Comcast, the FCC adopted the Open Internet Order which imposed Internet-neutrality rules of disclosure, antiblocking, and antidiscrimination on broadband providers.7 Verizon then petitioned for judicial review of the FCC’s authority to adopt the Open Internet Order.8
The FCC was established by Congress under the Communications Act of 1934 (Act of 1934) to regulate interstate and international communications transmitted by radio, television, wire, satellite, and cable.9 One of the FCC’s major enforcement provisions under the Act of 1934 mandated that common carriers provide their communications services to the general public on a nondiscriminatory basis.10 Under the Act of 1934, all telecommunications carriers were classified as “common carriers,” with telecommunications defined as the “transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.”11 The FCC continues to classify these purely transmission-based services as “telecommunications services.”12
The FCC’s regulatory authority was subsequently overhauled by the Telecommunications Act of 1996 (Act of 1996).13 The Act of 1996, among other things, expanded the jurisdiction of the FCC to intrastate telecommunications and also reinforced the nondiscrimination principles for telecommunications providers. The FCC was also given the power to regulate “information services,” defined as the “offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.”14 Notably, information services providers were not classified as common carriers and were thus not subject to the same antidiscrimination laws as telecommunications service providers.15 In 2002, the FCC issued a declaratory ruling that classified cable modem service as an “interstate information service” causing those services to fall within its jurisdiction; however, the ruling stated that cable modem services do not contain a separate telecommunications service offering and as a result are not subject to common-carrier regulation.16 Subsequently, many companies petitioned for judicial review of this declaratory ruling. The United States Court of Appeals for the Ninth Circuit held that while cable modem services can be classified as information services, the FCC could not reasonably construe the Act of 1996 as exempting cable modem service carriers from the common-carrier regulations.17 The FCC, in response, petitioned for certiorari to the United States Supreme Court. The Court granted certiorari and overturned the Ninth Circuit’s ruling, holding that the FCC’s conclusion that broadband cable modem companies are exempt from mandatory common-carrier regulation was a lawful construction of the Act of 1996.18
Due to the Brand X ruling, all cable broadband providers in the United States are classified as information services and are not subject to the common-carrier regulations, while dial-up Internet providers are subject to such regulations. Despite the early absence of regulation of information services, the FCC signaled its intention to regulate these services when it issued a policy statement in 2005 containing four principles of Internet neutrality, which aimed at preserving and promoting the open and interconnected nature of the Internet.19 This policy was eventually struck down by the D.C. Circuit when the court determined that the FCC lacked jurisdiction to impose common-carrier regulations on broadband providers.20 The FCC argued that the Act of 1934 gave the Commission ancillary power to impose common-carrier regulation on broadband providers; however, this argument was defeated.21 In response to the Brand X and Comcast rulings—along with the latent ambiguity surrounding the FCC’s ability to regulate information service providers—there have been many proposed bills in Congress attempting to resolve the status quo, most imposing the common-carrier regulation of antidiscrimination on broadband providers.22
In Verizon v. FCC, the D.C. Circuit was aware of the potential ramifications of its holding and began by reviewing whether the FCC had statutory authority to regulate broadband providers pursuant to section 706(a) and (b) of the Act of 1996, which requires the FCC to promote competition in the local telecommunications market.23 The court held that the FCC had statutory authority, in accordance with the FCC’s revised interpretation of section 706. The court then proceeded to review whether the Internet-neutrality rules adopted in the Open Internet Order exceeded the FCC’s scope of authority.24 The court concluded that because the FCC had classified broadband providers as information services without a telecommunications element, and because the Open Internet Order rules relative to antidiscrimination and antiblocking amounted to per se common-carrier regulations, those rules could not be imposed on broadband providers who were otherwise exempt from such regulation.25 The FCC argued that the Open Internet Order rules did not impose common-carrier regulations on broadband providers and that they were not “carriers” as defined in the Act of 1996. Nevertheless, the court found these arguments unpersuasive, reasoning that although broadband providers were not carriers, they were obligated to act like common carriers as a practical result of the Open Internet Order rules.26 All three Judges of the D.C. Circuit in Verizon agreed that the Open Internet Order rules impermissibly imposed antidiscriminatory and antiblocking regulations on broadband providers; however, Judge Silberman, dissenting in part, argued that section 706 of the Act of 1996 did not grant the FCC affirmative authority to promulgate these Internet-neutrality rules.27
Because broadband providers are not subject to antidiscriminatory and antiblocking rules as a result of Verizon, these providers are able to favor certain websites and web services over others.28 This ability to freely discriminate amplifies the impact of web-service and broadband-provider agreements, such as the recent agreement between Netflix and Comcast.29 Though on its face this transaction eliminates the intermediary backbone provider, allowing Comcast to manage the dissemination of data between Netflix and end-users directly, it also permits Comcast to both offer a fast broadband package to web services that can afford it and to slow down, or throttle, data speeds for web services unwilling or unable to pay them for faster speeds.30 This practice will serve not only to stifle competition in the broadband market—as newer companies may not be able to afford a broadband provider’s prices—but will also impose costs on the end-user who will either have to pay more or be forced to use a web service that has its data speeds throttled.31 In addition, Verizon also impacts the looming Comcast and Time Warner merger, in which the resulting organization would be providing broadband to nearly one-third of the country.32 Without any antidiscriminatory or antiblocking rules in effect, a broadband provider covering that much of the country would be in an advantageous bargaining position in the event it decides to implement discrimination and blocking practices against web services; and the web service might only be left with the choice to pay what the broadband provider is asking or risk going out of business.
The D.C. Circuit’s conclusion in Verizon was practical and well-rooted in the law when it struck down the FCC’s Internet-neutrality rules for broadband providers because the FCC’s own classification system with respect to information service providers exempted them from such regulations.33Moreover, the FCC’s classification between telecommunication services and information services was upheld by the Supreme Court, and prior attempts to apply common-carrier regulations upon broadband providers have similarly been struck down by the courts.34 Nevertheless, the Court’s decision leaves the future of net neutrality and a free and open Internet uncertain. Congressional action is now the only solution to this problem. Congress must legislate in the area of Internet neutrality or reclassify broadband providers as common carriers. Although previous congressional attempts aimed at achieving this result have been defeated, the looming megamerger of Comcast and Time Warner, as well as the web-service and broadband-provider agreements between key providers such as Comcast and Netflix should have an impact. Indeed, it is clear that the ramifications of not having Internet-neutrality laws are now becoming more apparent to Congress than ever before.
R. Brice Turner, Case Note, D.C. Circuit in Verizon Strikes FCC’s “Net Neutrality” Rules for Broadband Providers, 2 Suffolk U. L. Rev. Online 46 (May 22, 2014), http://suffolklawreview.org/turner-verzion.
The right for a person to be free in his or her body, effects, and property from governmental intrusion serves as the bedrock of the Bill of Rights, as well as the Commonwealth of Massachusetts’s Declaration of Rights.1 As technological advances, such as the creation of smartphones, increasingly allow for the monitoring and tracking of a device owner’s whereabouts, courts are left to reconcile whether and to what extent that information can be used in criminal proceedings.2 In Commonwealth v. Augustine,3 the Supreme Judicial Court of Massachusetts was tasked with deciding whether police may obtain historical cell site location information (CSLI)—which uses signals sent from cell phones to signal towers in order to track a device’s location—from a potential suspect’s cell phone service provider without a warrant.4 The Court held that under the Massachusetts Declaration of Rights, police must obtain search warrants supported by probable cause because defendants are owed a reasonable expectation of privacy in that information.5
Julaine Jules’s body was found in the Charles River on September 19, 2004, nearly one month after she went missing.6 Shortly after its discovery, police began investigating the possible involvement of her former boyfriend, Shabazz Augustine, in her murder.7 In order to “possibly include or exclude” Augustine “as a suspect,” police requested CSLI from his cellular service provider, Sprint Spectrum (Sprint), for a two-week period beginning on the last day Jules was seen alive; police requested this information by means of a court order under § 2703(d) of the Stored Communications Act (SCA),8 but not pursuant to a warrant.9 A Superior Court judge granted an order to Sprint under § 2703(d) of the SCA, and Sprint released sixty-four pages of CSLI records to the Commonwealth.10 Nearly seven years later, Augustine was indicted by a grand jury for the murder of Jules.11
Augustine moved to suppress this CLSI evidence on the grounds that it violated both his Fourth Amendment and Article Fourteen rights to be free from warrantless searches.12 The Superior Court judge agreed that Augustine’s rights under Article Fourteen were violated and ruled that the CSLI information must be suppressed.13 The Commonwealth sought interlocutory review, which a single justice allowed and ordered that the case be heard before the Supreme Judicial Court.14
Under both the Fourth Amendment and Article Fourteen, the government may not search or seize a person, his house, or his effects without a search warrant that is supported by probable cause, with limited exceptions.15 In order to determine whether a search in the constitutional sense has occurred, courts first assess whether the person being searched had a subjective expectation of privacy and then evaluate whether that expectation of privacy is reasonable.16 If both prongs are satisfied but the government did not obtain a warrant for the search (and no exceptions apply), then the search is illegal and the evidence obtained is excluded.17 While courts emphasize that individuals have a manifest reasonable expectation of privacy from the government within the sanctity of their own home, they have likewise held that an expectation of privacy in effects, such as bank statements, transmitted to third parties is not reasonable.18 As technological advances allow individuals to more easily engage in behavior that was typically reserved for protected areas, courts are forced to evaluate whether that information should remain protected now that law enforcement could otherwise obtain it through first-hand observation.19
The SCA was initially created to protect the information transmitted by electronic communications by limiting the circumstances in which service providers could disclose it.20 The SCA allows the government to obtain this information either pursuant to a warrant, which requires a showing of probable cause, or pursuant to a § 2703(d) order, which requires only a showing of reasonable suspicion—a much lower standard.21 While courts remain divided on the issue, many federal courts have held that the lesser “reasonable suspicion” standard mandated by the § 2703(d) order is sufficient to obtain historical CSLI, even though CSLI may reveal information about people while they are at home or engaging in other constitutionally protected conduct.22
While states are required to enforce (and may not abridge) the protections under the Fourth Amendment under the provisions of the Fourteenth Amendment, they are empowered to enlarge those rights23 Accordingly, some states have held that the § 2703(d) process constitutes an illegal search under state constitutions, even though it may comply with the Fourth Amendment.24 Particularly in regard to electronic communications, the Massachusetts Supreme Judicial Court has diverged from the Supreme Court in analyzing searches and seizures under Article Fourteen and afforded Massachusetts residents greater protections than those found under the Fourth Amendment.25
In Commonwealth v. Augustine, the Supreme Judicial Court declined to analyze the release of Augustine’s CSLI records pursuant to the § 2703(d) order under the Fourth Amendment, thus limiting its holding to Article Fourteen of the Massachusetts Declaration of Rights.26 The Court first evaluated whether Augustine’s voluntary use of his cellular telephone, and his knowledge that cellular service providers maintain information about the telephone’s whereabouts, diminishes his expectation of privacy. The Court held that it did not, because of the “indispensable” role cellular telephones play in modern society and the lack of choice people have in cellular service providers transmitting this information.27 The Court next compared CSLI data to GPS tracking and emphasized the likelihood that those records would reveal information about Augustine’s location in constitutionally protected places.28 The Court concluded that Augustine’s expectations of privacy were reasonable, and thus, a search had occurred when the government sought to obtain Augustine’s CSLI. Therefore, police should have obtained a search warrant supported by probable cause.29 Accordingly, the less stringent “specific and articulable facts” standard used in Officer McCauley’s § 2703(d) application was invalid, rendering the search unreasonable.30
Justice Gants, with whom Justice Cordy joined, dissented.31 While they would recognize that certain types of CSLI—namely, registration information—ought to be protected under Article Fourteen, they believed that the more general information of historical CSLI (which only tracks the cell site location when the telephone makes or receives calls) reveals no information that Augustine could reasonably expect to be kept private.32 The dissent reasoned that cellular telephone users would need to make calls constantly in order for the telephone call CSLI to amount to GPS tracking.33 Further, because this type of information is stored only when calls are made or received, the dissent disagreed with the majority’s contention that the information conveyed to the third-party service provider was involuntary.34 Justice Gants would accordingly deny the motion to suppress the CSLI records, which only sought to know the location of the cellular device when it made or received calls for a two-week period.35
The dissent underscores an important question on the distinction between types of CSLI not squarely addressed by the majority opinion: do all types of CSLI deserve the same constitutional treatment?36 Registration CSLI tracks the precise locations of cellular devices every seven seconds, allowing law enforcement officers to reconstruct detailed maps showing where, when, and for how long individuals were at certain locations.37 All justices on the Supreme Judicial Court agree, as do many other jurisdictions, that law enforcement officers should obtain search warrants in order for this type of data to be released.38 However, the type of CSLI at issue in this case—historical CSLI—tracks only the locations of cell sites used in the event calls were made or received.39 This practical difference bears some significance on the court’s third-party analysis, as well as the parallels it draws to GPS tracking.40
The court’s conclusion that Augustine’s transmission of information by his cellular telephone to his service provider violates his reasonable expectation of privacy marks a departure from how many courts have addressed the issue.41 Its departure results from distinguishing the applicability of certain Fourth Amendment precedent.42 Other courts have specifically relied on the Supreme Court case of Smith v. Maryland for the proposition that an individual’s expectation of privacy in the telephone numbers he calls is unreasonable;43 instead, the majority in Augustine emphasized that cellular telephone users do not expect that the telephone numbers they dial remain private, but rather the area in which those calls are made should remain private, now that telephones are portable (noting especially that Smith was penned prior to the development of portable telephones).44 In this regard, location information is not voluntarily given simply because cellular telephones exhibit the feature of portability, since users take no affirmative actions to disclose it.45
Though not directly linked back to its introduction on how cellular telephone technology has evolved, the trend of cellular service providers consistently constructing new cell sites supports the majority’s reasoning that even historical CSLI may eventually operate like GPS tracking, if not more precisely.46 In this regard, the opinion seeks to address future likely events as well as analyzing the facts of the underlying case.47 While historical CSLI is contingent upon calls being made to or from the cellular device, the reality that this information will be transmitted while the device is in constitutionally protected areas cannot be ignored.48 As such, data provided by even historical CSLI may be more invasive than what law enforcement could learn through first-hand observation or GPS tracking.49 Furthermore, the use of GPS tracking provides location information for future movements, but historical CSLI would allow police to recreate an individual’s past movements—“a category of information that never would be available through the use of traditional law enforcement tools of investigation.”50
In Commonwealth v. Augustine, the Supreme Judicial Court ruled, consistent with its Article Fourteen jurisprudence, that in order for police to obtain CSLI from a particular cellular telephone they must first obtain a search warrant. While this holding declines to interpret § 2703(d) applications under Fourth Amendment analysis, it may play an important role in shaping state constitutional analysis in other jurisdictions. Further, the decision may serve as guidance to the Supreme Court in the event that the apparent split between federal courts on the reasonableness of privacy expectations in CSLI is granted certiorari. Because privacy expectations remain a reflection of what society as a whole is willing to accept as reasonable, every individual decision protecting the privacy of CSLI will help demonstrate to the Supreme Court that the government should obtain warrants before infringing upon it.
Kathryn Acello, Case Note, SJC Requires Search Warrants To Obtain Defendants’ Cellular Site Location Information in Augustine, 2 Suffolk U. L. Rev. Online 37 (May 19, 2014), http://www.suffolklawreview.org/acello-augustine.
This distinction between privacy interests in public and private spaces makes CSLI especially problematic, because cellular telephones give off signals from within both spaces, and when the government seeks to obtain CSLI from a cellular service provider, it has no way of knowing in advance whether the CSLI will have originated from a private or public location.
Id. at 864. ↩
Police officer testimony during OUI (operating a motor vehicle while under the influence of alcohol) trials in Massachusetts often reads like a script from an all too familiar play, with indicators of alcohol intoxication largely the same across police reports and police officer testimony. Police reports are almost certain to include phrases such as, “odor of alcohol on the [driver’s] breath” and “eyes were bloodshot.”1 Indeed, these are common—albeit accurate—indicators of alcohol consumption and intoxication. There are also many other indicators, which are generally important factors in a police officer’s determination of whether he or she has probable cause to arrest a suspected OUI offender.2 When any of these common indicators of intoxication are observed by a police officer, it is a safe bet that it will be listed in the police report. Likewise, when an officer writes something in his or her police report, they almost certainly will testify to it at trial as if it were a fact and not merely one of their observations. This is a common practice, as police officers arrest countless citizens during the course of their duties and there is no prohibition against testifying to alleged facts recorded in a police report.
It is also recognized in Massachusetts that police officers may offer their opinion, as lay witnesses, regarding a defendant’s level of intoxication and may even offer their opinion that a defendant was indeed “drunk.”3 However, the Massachusetts Supreme Judicial Court (SJC) recently decided in Commonwealth v. Canty that a police officer testifying in an OUI trial “may not opine as to the ultimate question whether the defendant was operating while under the influence, but they may testify to his apparent intoxication.”4 This Case Note will examine the SJC’s decision in Canty, briefly outlining the legal theories relied upon by the court in making its decision, and focusing on the court’s analysis. Moreover, this Case Note will also discuss the implications of the SJC’s decision on OUI trials going forward, emphasizing the suggested proper lines of questioning posed to police officers by prosecutors, the proper instructions to police officers by prosecutors before trial, and various strategies and approaches defense attorneys should take in light of the Canty decision.
II. Police Officer Testimony In OUI Trials
A police officer rarely qualifies, except in limited circumstances that specifically pertain to knowledge gained through specialized police work, as “a witness qualified as an expert by knowledge, skill, experience, training, or education.”5 Therefore, police officers are usually deemed lay witnesses, which limits their opinion testimony to observations that are: “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”6
As lay witnesses at OUI trials, police officers are permitted to offer their lay opinion regarding a person’s level of intoxication, but while their training and experience teaches them to look for specific signs of drunkenness, intoxication, or inebriety, their opinion that a person is intoxicated remains that of a lay person, just as any other person may offer such testimony.7 Police officers receive training on what to look for in order to determine a person’s level of intoxication and gain experience in making such determinations and testifying on what factors lead them to make those determinations while performing their duties. Nevertheless, their training, knowledge, and experience does not reach the level of an expert with regard to the level of intoxication or the effects of alcohol on a person.8
On the other hand, an expert qualified “by knowledge, skill, experience, training, or education” regarding the effects of alcohol on human beings may testify on that subject, if such “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence.”9 In order for a qualified expert to do so, however, the expert’s testimony must be “based upon sufficient facts or data, . . . [be] the product of reliable principles and methods, and . . . the witness [must apply] the principles and methods reliably to the facts of the case.”10 This permits experts to offer a greater degree of opinion testimony than that of lay witnesses, as expert witnesses are permitted to rely upon and explain in greater detail what facts, data, principles, and methods helped them arrive at their ultimate conclusion. Regardless, expert witnesses still may not offer their opinion as to the ultimate issue in any case, such as a specific element of an offense at trial, because the purpose of expert testimony is only to assist the factfinder in determining a fact at issue.11
As long as witnesses do not directly testify that they believe a defendant is guilty or innocent in a criminal case, there is no explicit rule in Massachusetts that prevents them from offering an opinion on the ultimate issue in a case. What courts must do in such circumstances is weigh the probative value of such opinion testimony against the threat of unfair prejudice to the defendant, in order to determine whether the testimony was improper.12 In OUI trials specifically, allowing police officers to testify as to their opinion on what effect a defendant’s consumption of alcohol had on a particular defendant’s ability to operate a motor vehicle safely, presents a significant danger of prejudicing a jury against the defendant because juries may view the opinion as that of an expert, although a police-officer witness, in such circumstances, is not qualified to give such an opinion.13 Allowing this testimony at OUI trials comes dangerously close to the ultimate issue of guilt, and because juries tend to view police officers as experts on determining a defendant’s ability to drive after consuming alcohol, the admission of this evidence diminishes the jury’s role in the fact-finding process.14 Therefore, police officers at OUI trials may—as lay witnesses—offer their opinion regarding whether the defendant was intoxicated; however, in order to do so, they must offer testimony about the observations they made of the defendant that helped them reach their conclusion.15
III. Commonwealth v. Canty
There is no explicit rule in Massachusetts that prevents witnesses from offering opinion testimony regarding the ultimate issue of guilt or innocence in a criminal case. Prior to the SJC’s decision in Canty, as long as testimony did not directly concern the defendant’s guilt, nothing prevented police officer’s from improperly offering opinion testimony regarding the ultimate issue of impairment during OUI trials. Accordingly, the police officer in Canty was allowed to testify that “[he] believed that [the defendant’s] ability to drive was diminished,” and that he believed this was due to “alcohol consumption.”16 Another officer testified that “[b]ased on what I observed, yeah, in my opinion [the defendant] was probably impaired.”17 After the jury returned a guilty verdict on the OUI charge and the judge denied the defendant’s motion to vacate his conviction on an indictment that was not before the jury, the SJC granted the defendant’s application for direct appellate review.18
The significant issue on appeal in Canty was whether a police officer may “offer testimony that, in his opinion, the defendant’s ability to drive was diminished by the consumption of alcohol, or that the defendant was probably impaired by alcohol?”19 The court noted that they were required to balance the tension between two well-established evidentiary principles that are specific to OUI trials: the admissibility of lay witness opinion testimony regarding whether a person was intoxicated from the consumption of alcohol and the long-recognized Massachusetts common-law principle that “[n]o witness, including a police witness, may testify as to a defendant’s guilt or innocence.”20 Indeed, the defendant’s contention that police officer’s testified to his guilt is sensible because having been charged with an OUI, a police officer testified that “[Canty’s] ability to drive was diminished by the consumption of alcohol and that he was ‘probably impaired.”21 Although the SJC had previously stated in Commonwealth v. Jones22 that opinion testimony as to the ultimate question of whether an OUI defendant was operating under the influence of alcohol is inadmissible, testimony regarding the defendant’s intoxication remains admissible. The court declined to provide further explanation, which left the door open for prosecutors to elicit—and for police officers to offer—opinion testimony on whether a defendant’s ability to drive was impaired from alcohol.23 In Canty, The SJC was presented with the opportunity to explain its reasoning in Jones and to create a concrete rule for police officer opinion testimony regarding a defendant’s impaired ability to drive as a result of alcohol consumption.
The SJC began its discussion by noting that “an opinion regarding a defendant’s sobriety is a lay opinion, not an expert opinion.” The court continued, stating that “the reasons for admitting a lay opinion are wholly different from the reasons for admitting an expert opinion,” as “the principal objective symptoms” of intoxication are well known to the average person, which gives such opinion testimony probative value.24 The court explained that because there are many subtle observations that any percipient witness can use to form an opinion as to a person’s level of intoxication, lay opinion testimony on a person’s level of intoxication is highly probative, and thus admissible.25 The court then noted that such lay opinion testimony regarding a defendant’s ability to safely operate a motor vehicle comes close to an opinion on the defendant’s guilt or innocence, which poses a significant danger of unfair prejudice.26 This danger is especially significant when the percipient lay witness is a police officer because when an influential witness, such as a police officer, offers an opinion on the ultimate issue of guilt or innocence, it may cause a jury to take the witnesses opinion as truth rather than independently analyze the facts.27 The SJC in Canty recognized that if the opinion testimony is a direct opinion regarding the guilt or innocence of a criminal defendant, then it is inadmissible.28
The SJC’s holding in Canty finally created an explicit prohibition on testimony as to “whether the defendant’s consumption of alcohol diminished his ability to operate a motor vehicle safely.”29 After applying this new rule to the police officer’s testimony at trial, the court concluded that the admission of the police officer’s testimony that the defendant’s “ability to drive was diminished” was improper. Nevertheless, the court held that the admission of the police officer’s testimony that the defendant was “probably impaired” was not prejudicial error.30 Justice Gants disagreed with the defendant’s assertion that the jury would reasonably understand the phrase “probably impaired” to refer to the defendant’s ability to drive because the “opinion was proffered in response to a question asking whether the officer had an opinion ‘as to [the defendant’s] sobriety.’”31 The court refused to limit the use of particular words or phrases in an opinion offered by a witness (lay or expert), recognizing that “[t]he rule that witnesses in describing conduct should tell what they saw and heard does not foreclose the use of words of summary description.”32 Reasoning that “‘[p]robably impaired’ . . . is no worse than many of the alternatives (e.g., ‘buzzed,’ ‘tipsy’) to describe a modest level of inebriation,” the court refused to exclude the police officer’s testimony that the defendant was probably impaired.33
First, “the risk of prejudice arising from the admission of an opinion that closely touches on the ultimate issue of guilt is less with lay opinion than with expert opinion, even where the lay opinion is offered by a police officer.”34 Second, the trial judge mitigated the risk of the jury giving the police officer’s opinion testimony too much weight by specifically instructing the jury that “they ultimately must determine whether the defendant was under the influence of alcohol, and that they may consider any opinion they heard about the defendant’s sobriety.”35 Third, there was overwhelming evidence of the defendant’s guilt, besides the police officer’s improper opinion testimony, which allowed the court to conclude that “the jury’s judgment was not substantially swayed by the error.”36
While the SJC correctly concluded that the police officer’s opinion testimony that the defendant’s “ability to drive was diminished” was improper, it declined to adequately address the issue of whether the police officer opinion testimony that the defendant was “probably impaired” should be admitted at trial.37 This not only presents problems for defendants and their counsel, but also presents significant problems for prosecutors who hope to try their cases correctly and avoid mistrials and overturned convictions. The risk is that police officers may be able to offer opinion testimony that a defendant was impaired while responding to questions other than those regarding a defendants’ sobriety; such a risk is not covered in the court’s opinion, and may, therefore, still constitute improper opinion testimony as to a defendant’s ability to operate a motor vehicle. Defense attorneys will likely challenge the admission of such opinion testimony, potentially resulting in mistrials, appeals, and overturned convictions.
Another problem presented by the SJC’s holding in Canty is that such language mirrors the jury instructions given regarding the under-the-influence element of OUI offenses.38 When opinion testimony that parallels jury instructions is admitted at trial, jurors may become confused regarding their role as the finder of fact. Rather than determine the credibility of trial testimony on their own, jurors who hear police officer opinion testimony that resembles the language the judge reads to them during jury instructions, may defer to the police officer’s opinion testimony because they hear this language from the officer, prosecutor, and judge.39 Because it is natural for jurors to trust judges more than any other participant in a trial, when the instructions given by a judge before deliberations closely resemble the terminology used by the prosecution and its witnesses, they are likely to give this testimony more weight, which may result in unfair prejudice.
While the SJC in Canty declined to recognize this danger, the circumstances in the case did not present the ideal opportunity to confront these problems.40 First, the police officer’s opinion testimony that the defendant was probably impaired was given in response to a question by the prosecutor regarding the defendant’s sobriety, rather than his ability to safely operate a motor vehicle. Second, the judge gave the jury a curative instruction regarding its role as the finder of fact. Lastly, the other evidence of the defendant’s guilt, besides the police officer’s testimony, was overwhelming.41 For these reasons, the risk of unfair prejudice was minimized.
In the wake of the SJC’s decision in Canty, prosecutors and defense attorneys should adjust their trial strategies in order to reach just results in OUI trials. Prosecutors must now better prepare their police officer witnesses before they testify to ensure that they do not offer opinion testimony regarding a defendant’s ability to safely operate a motor vehicle as a result of consuming alcohol. If they do not, they may risk mistrials and overturned convictions in cases where OUI defendants should otherwise be convicted. On the other hand, defense attorneys must be aware of prosecutors and police officers who attempt to slip such improper opinion testimony into evidence at trial and vehemently object and call for a mistrial when this occurs. While ideally the SJC would have recognized the significant risk of unfair prejudice when the language used in opinion testimony offered by police officers closely resembles the jury instructions, the court was correct in declining to do so in Canty. Nevertheless, defense attorneys in OUI trials should continue to present this argument in hopes of one day bringing this issue up on appeal in a case where the factual circumstances better allow the SJC to reach this decision.
Timothy Rodden, Case Note, SJC in Canty Addresses Police Officer Testimony at OUI Trials, 2 Suffolk U. L. Rev. Online 29 (May 12, 2014), http://www.suffolklawreview.org/rodden-canty.
Even where a witness has described the defendant’s appearance, manner, and conduct (e.g., bloodshot eyes, slurred speech, and unsteady gait), a lay opinion by a percipient witness regarding the defendant’s intoxication is still of probative value because such an opinion, especially as to the level of intoxication, may be shaped by observations too numerous or subtle to mention.
Canty, 998 N.E.2d at 329. ↩
Ernest Willis was convicted of various sexual assault offenses that occurred in 1997.1 He appealed those convictions in State v. Willis, by arguing that the court erred in admitting certain portions of a police interrogation recording into evidence.2 The conviction arose from Willis’s interactions with a fifteen-year-old girl who attended his church. On one occasion, Willis had sexual contact with the victim during a driving lesson. About one month later, he had sexual intercourse with the victim at her home.3 In October 1997, the victim disclosed to a neighbor, who was a member of her and the Willis’s church, that she was pregnant with his child. The neighbor notified both the victim’s mother and church pastor. The pastor investigated and met privately with Willis, who acknowledged his relationship with the victim. After receiving confirmation from Willis, the pastor informed the police and the New Hampshire Division for Children, Youth and Families (DCYF).
The investigation stalled in 1997, but was reopened by a detective in 2010. The investigation led to Willis meeting with detectives and participating in a recorded interview. During the interview, an officer told the defendant that he did not “see the motivation for [the victim] to lie.”4 The prosecution sought to admit the tape into evidence and play it for the jury. Willis submitted a pretrial motion to exclude portions of the recorded interrogation from evidence, along with other items, which included the officer’s “motive to lie” statement.5 Willis argued that the statement was the officer’s opinion as to the victim’s—and thus Willis’s—credibility. That is, the recording of the officer’s statement exposed the jury to the officer’s view that the victim had no motive to lie, and thus implied that she was truthful. Willis also argued that the statement should have been excluded because its prejudicial effect substantially outweighed its probative value. The prosecution countered that the officer was not attempting to convince anyone that the defendant was lying; rather, it was an interrogation technique utilized to convince Willis to tell the truth.
The trial court denied the part of Willis’s motion concerning the motive-to-lie statement, but issued a limiting instruction informing the jury that “‘the question part of the tape that you have just heard is only being admitted for the purpose of . . . context, what elicited a particular response of the Defendant,’ and not for the truth of any assertions contained within the officers’ questions.”6 This issue of first impression was appealed to the New Hampshire Supreme Court.
The Admissibility of Statements Made During Police Interrogations Relating to Witness Credibility
At the center of evidence law is the principle of relevance.7 In New Hampshire—like most states—evidence is “relevant” when it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”8 Generally, evidence can only be admissible if relevant, but this is subject to many exceptions.9 One such exception is Rule 403 of the New Hampshire Rules of Evidence, which allows relevant evidence to be excluded if its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”10 Unfair prejudice typically would lead a jury to reach a verdict based on evidence that triggers horror, outrage, or some other strong emotion, as opposed to a logical evaluation of all the evidence presented.11 For example, New Hampshire courts largely prohibit questions regarding a witness’s opinion about the credibility of another witness.12 The courts reason that such questioning is not probative and “such questioning interferes with the jury’s obligation to determine the credibility of witnesses.”13 Nevertheless, whether recorded police interviews implicate the same concerns that underlie the prohibition on witness testimony regarding the trustworthiness of other witnesses is subject to much debate.
There is a chance that by admitting such evidence jurors may confuse an officer’s statement as being submitted to prove the truth of the matter asserted—i.e., that the victim is not lying—instead of just providing context in the case. Presenting these interviews with only the defendant’s responses, however, may harm the recording’s effectiveness by requiring it to be redacted and therefore making it confusing.
Prior to its decision in Willis, the New Hampshire Supreme Court had not considered whether a police officer’s statement during an interrogation was admissible if it concerned a witness’s credibility.14 Several other state and federal courts have addressed the issue and there is no consensus.15 The Kansas Supreme Court has held that a trial court erred by showing the jury a video recording of a police officer commenting on the defendant’s credibility.16 That court concluded that “[a] jury is clearly prohibited from hearing such statements from the witness stand in Kansas and likewise should be prohibited from hearing them in a videotape, even if the statements are recommended and effective police interrogation tactics.”17 In contrast, although the Washington Supreme Court acknowledged that such video recordings are generally inadmissible without a limiting instruction, it held that the lack of a limiting instruction by the trial court was harmless error and thus affirmed the defendant’s conviction.18 Similarly, the Ninth Circuit has held that recordings of police commentary on credibility do not deprive defendants of due process because limiting instructions cure any errors.19 Further, Missouri courts have allowed this type of evidence, reasoning that the recordings are simply part of an interrogation technique.20 Pennsylvania courts, on the other hand, have held the opposite, deciding that explicit or implicit police accusations of untruthfulness must be redacted from a tape before the jury views it.21
Despite this split, most courts have recognized that interrogations are an effective investigatory tool and officers’ statements during interrogations provide context to understand defendants’ responses.22 Few courts, however, have drawn the very fine distinction between statements that claim a witness is lying and those statements or questions that ask a person to comment on a witness’s motive to lie. While the former directly comments on someone else’s truthfulness, which is prohibited by New Hampshire law, the latter explores whether someone else may have a potential bias, which is permissible.
The Willis Court’s Decision
The New Hampshire Supreme Court affirmed Willis’s conviction, and drew different conclusions regarding the admissibility of the various challenged pieces of evidence.23 Regarding the officer’s statement about the victim’s motive to lie, the court held that the danger of unfair prejudice did not substantially outweigh its probative value. Therefore, the trial court’s admission of the statement was not an “unsustainable exercise of discretion.”24 In reaching its decision, the court reasoned that the motive-to-lie statement was probative because it provided context for Willis’s explanations of the victim’s conduct and bias.25 The court further reasoned that the risk of prejudice was minimal because the officer’s statements were not an appeal to the jury’s emotion or an opinion as to the victim’s credibility; instead, they merely posed questions that explored a witness’s potential bias.26
The New Hampshire Supreme Court’s decision initially appears to provide clear guidelines for the admissibility of recorded interrogations. That is, recorded interrogations are admissible when the defendant’s statements may reveal consciousness of guilt or explore a witness’s potential bias, and officers’ statements are necessary to provide context for the defendant’s statements.27 Notwithstanding this guideline, the court’s decision in Willis may have created a slippery slope by characterizing the officer’s statement as exploring bias, rather than as commenting on the victim’s credibility. In Willis, all of the officer’s statements suggested that he could not understand what would motivate the victim to lie.28 However, one could conclude that the officer was explicitly suggesting that he did not believe the victim had a motive to lie, and thus had no bias.29 By permitting this type of evidence, the court allowed an inference that the victim was truthful, and therefore Willis was guilty. A limiting instruction that an officer’s statement is only offered for context—and not for the truth—may assist in eliminating the risk of unfair prejudice. Nevertheless, a law enforcement officer’s statement carries with it an aura of reliability and trustworthiness, which could unduly prejudice a jury.
Courts will surely continue to grapple with whether an officer’s comment on a witness’s credibility should be admissible with a limiting instruction. Some argue that could be enough to taint a jury and render the proceedings fundamentally unfair. Others contend, as the Willis court did, that such evidence provides important context, and that juries can be trusted to heed limiting instructions. Courts should decide these questions on case-by-case bases, utilizing the discretion evidence law provides to the trial judge. Future litigation should continue to address the potential prejudice that defendants may encounter under such circumstances, and provide further guidance to avoid unjust results.
Julianne Campbell, Case Note, Providing Context: New Hampshire Supreme Court Allows Recording of Officer’s “Motive to Lie” Statement into Evidence, 2 Suffolk U. L. Rev. Online 24 (Apr. 20, 2014), http://suffolklawreview.org/campbell-Willis.
In Commonwealth v. Winfield,1 the Massachusetts Supreme Judicial Court (SJC), in a matter of first impression, held that the First Amendment right of access to a criminal trial—as applied to the states through the Fourteenth Amendment—and the common-law right of access to judicial records did not extend to a backup room recording that was not the official record of the trial.2 In 2007, Keith Winfield was convicted of two counts of forcible rape of a child under the age of sixteen, indecent assault and battery of a child under the age of fourteen, and assault and battery of a child causing serious bodily injury.3 The Massachusetts Appeals Court affirmed the convictions.4 Steve Audette, a film producer, is making a documentary film concerning the defendant’s prosecution and convictions.5 Audette says that the documentary “will examine, among other things, Winfield’s continued assertion of innocence in light of the evidence presented at trial.”6
The court reporter during the trial was a “voice writer,” which means that she creates a “voice-over recording” on to a tape recorder by wearing a special mask and repeating everything that is said at the trial.7 The court reporter then created the official transcript of the trial from the voice-over recording.8 In addition to the voice-over recording, the court reporter had a separate audio room recording during the trial as a backup, which presumably recorded everything said at the trial, including inflections, nuances, and pauses made by each speaker.9 Audette purchased a copy of the trial transcript from the court reporter, but also requested a copy of the audio room recording.10 The court reporter would not release a copy of the room recording unless she was directed to by the court; accordingly, Audette filed a motion asking the court to order the reporter to provide him with a copy of the audio room recording arguing that his First Amendment and common-law rights of access to judicial records guaranteed him access to the audio recording.11 The trial judge concluded that when a transcript of the trial is available an individual is not entitled to the backup room recording because the room recording is not a judicial record subject to the right of public access under the First Amendment or common law.12 The judge reported her decision to the Appeals Court and the SJC took the case on their own motion.
Common-Law Right of Access to Judicial Records
There is a long-standing right of public access to judicial records in Massachusetts that “is governed by overlapping constitutional, statutory, and common-law rules.”13 The long-recognized common-law right of access to judicial records is not restricted to a certain class of persons, but rather is available to the entire public.14 The Supreme Court first considered the common-law right to inspect and copy judicial records in Nixon v. Warner Communications, Inc.15 The Court in Nixon established a presumption in favor of public access to judicial records, but went on to explain that it was only a presumption.16 This presumption of public access both allows the public to keep a watchful eye on the government and to make sure its public servants are properly carrying out their duties.17
The presumption of public access, however, only applies to judicial records. Thus, the threshold question when determining if a document should be open to the public is whether it constitutes a “judicial record.”18 Under Massachusetts case law, if a document or recording is kept in the court file then it is considered a judicial document accessible to the public, unless it is impounded.19 The court has the power to impound the files of a case and deny the public access to them “when justice so requires.”20 In determining when the right of access to judicial records should be overridden, courts analyze all relevant factors, including the public’s interest in understanding the trial and whether the disclosure of the information would allow for improper use such as scandalous or libelous purposes.21
First Amendment Right of Access to Criminal Trials
The First Amendment inherently grants the public, along with the press, the right of access to criminal trials.22 This right under the First Amendment also acts as an “effective check” on the judiciary.23 The First Amendment right only applies to judicial documents. Whether a document is a judicial document hinges on whether the document was filed in court, or was otherwise integrated into the court’s adjudicatory proceedings.24 This right of access also inherently includes the right to purchase a transcript of the proceeding that was open to the public. The Supreme Court in Press-Enterprise, Co. v. Superior Court25 equated the right to attend a hearing with the right to obtain a transcript of the hearing, and reasoned that any denial of a transcript request “would frustrate what [the Court has] characterized as the ‘community therapeutic value’ of openness.”26 Further, the First Amendment right of access to the courtroom provides a strong presumption that those that cannot attend the trial may still learn what happened during the proceedings by purchasing a copy of the transcript.27
The First Amendment right of access, like the common-law right of access, is not absolute. There is a strong constitutional presumption in favor of a public trial. Other important interests, however, may overcome this presumption.28 A judge may find on a case-by-case analysis that closing the courtroom is “essential to preserve higher values and is narrowly tailored to serve that interest.”29 The party that opposes the right of access has the burden of proving that the overriding interest is narrowly tailored to serve that interest.30
Massachusetts Rules and Statutes Enabling Right of Access
Massachusetts has its own statutes, rules, and standing orders that require official transcripts be made available to the public. Massachusetts superior courts require that a court reporter, where available, create a transcript of the case.31 Under Massachusetts law, a court reporter is a shorthand reporter or voice reporter who is a sworn officer of the court appointed by the justices of the superior court to make a “verbatim record” of the trial.32 The court reporter then, upon request “shall furnish a transcript of his notes, or any part thereof, taken at a trial or hearing.”33 The transcript, once it has been “verified by the certificate of such stenographer,” is then admissible as evidence of the testimony given at the trial or the hearing and is what is ultimately used as the “record” on appeal.34 In Massachusetts, if there is no certified transcript than an electronic recording of the trial or hearing is the official record of the proceeding.35
The SJC’s Holding
The SJC held that Audette did not have a constitutional, common-law, or statutory right to the backup room recording when a certified transcript was the official record of the trial.36 The court reasoned that if Audette had attended the trial he would have had no constitutional right to make an audio recording of the trial and the court saw no reason to extend the First Amendment right of access to include unofficial electronic recordings where there is an official record of the trial.37 The court further explained that the common-law right to judicial records did not extend to the backup room recording because this right only applies to judicial records, which in this case included only the official transcript.38
The court held that in this case they only needed to determine whether the presumption of public access should apply to the backup room recording. The question that must be answered to make this determination is “whether a record that is not kept in the court file is nonetheless so important to public understanding of the judicial proceeding that it should be presumed to be public.”39 The court ultimately decided that where there is an official transcript available to the public, the backup room recording does not pass this test because it is more likely to create public confusion than aid public understanding.40 The SJC, however, clarified that this does not mean the public may not request access to the room recording, but rather that the “burden is not on the opponent of the motion to overcome the presumption of public access by showing good cause to impound the presumptively public recording.”41 The burden rests on the proponent of the motion to show why the interests of justice, in the particular case at hand, would be served by making a document that is not inherently available to the public.42 In the end, the judge decided in this case that the room recording was not a judicial record, but found that even if it were, if the Commonwealth had to show just cause to impound it, the burden would have been met. Taking all factors into consideration, the SJC found that preventing the disruption to the peace of mind of the victim and victim’s family from hearing the recording again outweighed Audette’s interest in giving a meaningful presentation to his viewers.43
The SJC conveyed a prudent tone in their holding and left room for other scenarios to arise where a backup room recording may be available to the public. The court did not determine whether the presumption of public access could apply to any document or recording that is the property of the court but is not referenced in the court file.44 Rather, the court only decided that when a verified transcript is available in the court file, making it a judicial document, a backup room recording would not be considered a judicial document, and is thus not presumptively available to the public. Indeed, the document may still be available to the public as long as the party seeking the recording can show why the interests of justice are being served by making it public.45 This leaves the court with possible outcomes where a document or recording that is not in the court file could still be made public. Yet, the SJC’s distinction between a presumption for access to “judicial records” and a presumption against access to recordings of trial proceedings that are court property raises important legal questions. The Supreme Court has held that “[w]hat transpires in the court room is public property.”46 The SJC conceded that the backup recordings at issue are indeed “the property of the court.”47 Thus, by holding that the backup recordings are not “judicial records” because an official transcript exists, the court’s holding draws a line in the sand, marking where the presumption of access shifts away.
In Massachusetts, the most immediate impact of the SJC’s decision will be felt by filmmakers or artists, such as Audette, who wish to have access to backup room recordings of highly contentious or troubling cases. These are the types of cases that interest filmmakers because the stories being captured usually generate great public interest. A documentary by its own definition is “a work, such as a film, presenting its subject matter factually, often with news films, interviews, and narration.”48 Filmmakers and artists best portray the actual happenings at trials by using the witnesses’ own words, in their own voices. This has the most impact on the audience. Using the recording also allows the filmmaker to preserve the trial, as it happened through the eyes of those that decided the defendant’s fate, for future audiences to experience as if they were there. Without access to the backup room recording, the documentary could lose a measure of its authenticity.
The SJC did allow Audette to purchase a copy of the transcript from the court. However, the SJC did not reverse the lower court’s holding that even if the backup room recording was considered a judicial record the prosecution would have met its burden of showing good cause to have the record impounded. Future litigation will likely raise the difficult question of whether a backup recording that is the judicial record of a public trial can still be concealed from the public in the interest of protecting a child victim. The constitutional question raised would certainly be a difficult one to answer. Indeed, Massachusetts has a history of providing special protections, which conflict with the U.S. Constitution, to the victims of crimes.49 Thus, a court confronted by this scenario, keeping in line with Winfield, may find that the interests of justice are better served by allowing the filmmaker access to the recording.
Mary C. Ambacher, Case Note, Back It Up: Massachusetts Supreme Judicial Court Holds First Amendment and Common-Law Rights of Access to Criminal Trial Do Not Extend to Backup Room Recording, 2 Suffolk U. L. Rev. Online 18 (Feb. 18, 2014), http://suffolklawreview.org/ambacher-winfield.
In United States v. Wurie,1 a police officer, while performing routine surveillance, observed what he believed was an illegal drug transaction between Fred Wade and defendant Brima Wurie.2 After brief questioning about the drug transaction by two officers, Wade admitted to buying the drugs from “B.”3 The officers then notified a third officer, who was following Wurie in his car, and that officer arrested Wurie for distributing crack cocaine.4 At the police station, officers took, among other things, two of the defendant’s cellular phones; one of the phones repeatedly received calls from a number identified by the phone as “my house,” which could be seen in plain view by the officers.5 The officers then opened the phone, revealing a “wallpaper” of a young woman holding a baby, and pressed a button to access the call log on the defendant’s cellular phone, which, in turn, revealed the specific phone number labeled as “my house.”6
The officers suspected that the defendant was lying about his address and involvement with the sale of drugs, so they researched the address associated with the phone number labeled as “my house” and went to that location. They arrived at an apartment and saw the young woman and baby that were pictured on the “wallpaper” of the cellular phone.7 Officers eventually entered the apartment in an attempt to “freeze” it while they acquired a warrant, which ultimately led to the seizure of drugs, guns, and money.8
Wurie was charged with possession of crack cocaine with intent to distribute, distribution of crack cocaine within 1,000 feet of a school, and being a felon in possession of a firearm and ammunition.9 Wurie filed a motion to suppress the evidence obtained as a result of the warrantless search of his cellular phone. The district court denied the defendant’s request, however, and the jury subsequently found Wurie guilty on all three counts.10 Wurie appealed the lower court’s decision, contending that the warrantless search of his cellular phone violated his Fourth Amendment rights because the search conducted by the officers unjustifiably intruded upon his right to privacy.11
The Fourth Amendment protects individuals from “unreasonable searches and seizures.”12 Opposition to the British search and seizure methods inspired the Amendment; it served to protect the privacy rights of citizens against the discretionary powers employed during the colonial period.13 Today, courts have continuously held that warrantless searches are per se unreasonable, unless one of the few exceptions applies.14 The Supreme Court carved out one of these exceptions in Chimel v. California,15 holding that a search-incident-to-a-lawful-arrest permits an arresting officer “to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction” and to search “the area into which an arrestee might reach in order to grab a weapon or evidentiary items.”16 The Court affirmed this principle in United States v. Robinson,17 holding that a warrantless search of a cigarette package on the defendant was valid and did not violate his Fourth Amendment rights.18 The underlying policy justifications for this exception remained the same: officer safety and the preservation of evidence.19
The warrantless search-incident-to-lawful-arrest exception has been applied to most, if not all, of the objects that can be found on one’s person.20 In New York v. Belton,21 the Supreme Court held that police may search a container on the arrestee’s person because the lawful custodial arrest justifies the infringement of the arrestee’s privacy rights.22 The Court reasoned that a “container” includes any object capable of holding another object, such as luggage, boxes, or bags.23 This definition, however, is quite broad and includes more than just objects that can hold an arrestee’s personal belongings.24
Courts are split regarding the constitutionality of warrantless searches of cellular phones incident to a lawful arrest, with a majority of decisions upholding the searches.25 In People v. Diaz,26 the Supreme Court of California held that, under Robinson, a cellular phone could be searched incident to a lawful arrest without any further justification; the lawful arrest justified the search.27 In United States v. Murphy,28 the Fourth Circuit held that the warrantless search of the defendant’s cellular phone was constitutional because of the need for officers to preserve evidence.29 The Seventh Circuit, in United States v. Flores-Lopez,30 agreed with this position, and held that officer safety justified a warrantless search of the defendant’s cellular phone.31 Conversely, in United States v. Park,32 a federal judge in California likened the search of a cellular phone to a Chadwick-type search; the court held that once the police gain control of the phone, they no longer have the ability to search it without a warrant, absent exigent circumstances, because the defendant is no longer in possession of the object and it is not within his immediate control.33 Moreover, the Supreme Court of Ohio held similarly in State v. Smith,34 deciding that a cellular phone is unlike other closed containers because of the high expectation of privacy in one’s phone.35 Lastly, the Florida Supreme Court in Smallwood v. State36 utilized the approach in Arizona v. Gant and declared that once a cellular phone is removed, there is neither a need for officer safety nor a chance that the defendant can destroy the evidence.37
Applying these factors to Wurie, the First Circuit reversed the district court’s decision and held that a warrantless search of a cellular phone, incident to a lawful arrest, violated Wurie’s Fourth Amendment rights.38 The court determined that a cellular phone was unlike any other container because of its ability to hold and store highly personal information, such as addresses, photographs, videos, and messages.39 The court wrote that the government did not prove that officers needed to search the cellular phone under either of the two underlying policy justifications of the exception—officer safety and the preservation of evidence.40 There was no officer safety justification because once officers realized the phone—as well as the data inside it—was not, in fact, a weapon or could harm them, officers had no reason to further inspect it.41 There was no evidence preservation justification, according to the court, because officers could have protected the phone from outside interference without accessing it.42 Indeed, the court reasoned that if there were a genuine threat that the phone’s content could be wiped or overwritten, then the police would routinely use methods of preservation to counteract such threats. Thus, the court saw the risk of evidence destruction as only “theoretical.”43 The court then recognized that the Supreme Court insists on “bright-line rules in the Fourth Amendment context.”44 Based upon this, the court developed a bright-line rule that warrantless searches of cellular phone data are “categorically unlawful” under the search-incident-to-arrest exception.45
The creation of the Fourth Amendment was spurred by its drafters’ intent to create a system that protects privacy interests and personal freedom, a system that, in current times, shields citizens from general warrants and unreasonable searches and seizures. A warrantless search of a cellular phone intrudes upon these essential civil liberties. Although capable of holding something else—under the loose Belton definition of a “container”—a cellular phone has many more capabilities and implicates unique and different privacy concerns. The Supreme Court in Belton could not have imagined the technological developments the future would bring: electronic devices are capable of containing someone’s entire personal life, for example, many today hold pictures of loved ones, videos of friends and family, access to home security cameras, and private messages. As Justice Brandeis once wrote, constitutional provisions must have the “capacity of adaptation to a changing world.”46 Once a cellular phone is accessed, police officers are no longer searching a container; rather, they are entering into the heart of a person’s private life, areas that the founding fathers intended to protect through the Fourth Amendment. With the rapid change and evolution of technology, allowing warrantless searches of cellular phones today could lead to similar searches of future devices with capabilities and privacy concerns far beyond today’s cellular phones. A line must be drawn somewhere, and the court correctly drew it at the warrantless search of a cellular phone under these factual circumstances. The alternative to the First Circuit’s decision in Wurie—allowing courts to apply multi-factor, fact-specific tests to determine the validity of such searches—would be very difficult for police officers to apply in the field.
The First Circuit’s approach not only comports with the underlying policy rationales of the search-incident-to-lawful-arrest exception, it also provides easy to follow guidelines for the police. First, when neither officer safety nor evidence preservation is an issue, officers must obtain a warrant under the search-incident-to-arrest exception. Second, if the police have probable cause that a cellular phone contains evidence of a crime and have an immediate and compelling need to act quickly and are unable to obtain a warrant, then the exigent circumstances exception is applicable and they can proceed with the warrantless search. Gant and its progeny have stated these principles time and time again, and there is no need to depart from such a rule, especially as it applies to highly personal and intimate information containers, to wit, cellular phones. The categorical approach leaves officers with a readily administrable rule to get a warrant first and search later. People’s privacy interests vastly outweigh this undemanding step. Thus, the First Circuit’s holding in Wurie was correct, and courts should continue to require that police officers go through the requisite legal strictures in order to break the seal of privacy.
A cellular phone is not analogous to a container. People are increasingly reliant on cellular phones to communicate, research, and plan their lives, and access to cellular phones’ contents paints a “subjective picture of our life.”47 Because the privacy interests people have in the containers and cellular phones they carry are so different, this is a case where the law has to “[adapt] to a changing world.”48
The Wurie case will by no means end the debate on warrantless searches of cellular phones. In fact, the government filed a petition for writ of certiorari, and the Supreme Court recently granted certiorari on January 17, 2014.49 Currently, police officers have to resolve conflicting constitutional rulings based on the region in which they are policing. Until the Supreme Court resolves these issues, courts will continue to decide these types of Fourth Amendment cases without uniformity.
Anthony J. Gambale, Case Note, First Circuit Prohibits Warrantless Search of Cellular Phones, 2 Suffolk U. L. Rev. Online 12 (Feb. 7, 2014), http://suffolklawreview.org/gambale-wurie.
In Bland v. Roberts,1 the Fourth Circuit held that “liking” a politician’s campaign Facebook page constituted protected speech under the First Amendment.2 In doing so, the court resolved an issue of first impression that interconnects First Amendment jurisprudence with social media’s influence on how people express themselves. The six plaintiffs in Bland are former employees of the Hampton, Virginia Sheriff’s Office, run by Sheriff B.J. Roberts. In November 2009, Roberts was pursuing reelection and running against an employee, Jim Adams.3 Plaintiffs alleged that in the summer of 2009, Roberts learned that they each expressed support for Adams’ campaign. One of the plaintiffs expressed his support for Adams by “liking” his campaign’s Facebook page.4 After winning reelection that year, Roberts reappointed 146 of his 159 full-time employees; the six plaintiffs were not reappointed.5 In March 2011, the plaintiffs filed suit in federal district court, alleging Roberts violated their First Amendment rights when he declined to reappoint them due to their support of Adams in the 2009 election.6
In December 2011, Roberts moved for summary judgment, asserting, among other claims, that the plaintiffs had not adequately alleged protected speech under the Constitution.7 The district court granted Roberts’ motion for summary judgment and, regarding the activity on Adams’ campaign’s Facebook page, concluded that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”8 The court distinguished “liking” a Facebook page from cases where people posted actual statements on a particular Facebook page; the latter determined by the court to be expressions of constitutionally protected speech.9 The court reasoned that “liking” a Facebook page is neither substantive nor a type of statement that has previously warranted constitutional protection, arguing that it would be improper for a court to infer the significance of simply “liking” Adams’ Facebook page without indicia of a specific statement.10 On appeal, the plaintiffs maintained that the district court erred in granting summary judgment and renewed their allegations that Roberts retaliated against them in violation of their First Amendment rights by choosing not to reappoint them due to their support of his electoral opponent.11 Carter, the plaintiff who “liked” Adams’ campaign Facebook page, specifically argued that his “like” was protected speech.
The First Amendment of the U.S. Constitution sets forth that “Congress shall make no law . . . abridging the freedom of speech.”12 Nevertheless, not all speech constitutes protected speech; in fact, there are particular types of speech that are afforded no protection at all. For example, such protection would not extend to a person who falsely shouts “Fire!” in a theater initiating a panic throughout the crowd, nor would it apply to an individual who solicits another person to commit a specific crime.13 The First Amendment affords the broadest protection to the discussion of public and political issues.14 Indeed, one of the principal purposes of the First Amendment is to protect free discussion of governmental matters.15 Political speech is at the heart of what the First Amendment serves to guard; thus, it is afforded the highest level of constitutional protection and receives unique deference.16
The Supreme Court has acknowledged that although the First Amendment applies only to traditional “speech,” the expressive nature of particular actions should also be afforded protection.17 Expressive conduct, falling within the scope of the First Amendment, must be “sufficiently imbued with elements of communication.”18 The Supreme Court has determined that there are a number of symbolic acts that constitute speech and are thus afforded protection under the First Amendment. In 1969, for example, the Court held that wearing black armbands representing disapproval of the Vietnam War was a symbolic expression protected by the First Amendment.19 Subsequently, in 1974, the Court held that hanging an upside down American flag with a peace symbol affixed on it constituted symbolic speech that fell within the scope of the First Amendment.20 Notably, in 1994, the Court held that a citywide ban on almost all residential signs violated the First Amendment, emphasizing the tradition of expressing political views through signs on one’s residence.21 The Court highlighted a two-part analysis to determine what symbolic speech was afforded constitutional protection: is there “[a]n intent to convey a particularized message,” and “in the surrounding circumstances [is] the likelihood . . . great that the message would be understood by those who viewed it[?]”22
While the conduct in the previously discussed cases is far from an exhaustive record of the Court’s recognition of symbolic speech, it serves to illustrate the Court’s practice of liberally interpreting what constitutes protected speech under the First Amendment. Given this trend, it seems appropriate that, in an era of social media, the Fourth Circuit in Bland held that “liking” a politician’s campaign Facebook page constituted protected speech. Facebook, one of today’s most popular social media platforms, has an estimated 1.19 billion monthly active users and 874 million monthly active mobile users worldwide.23 Facebook’s website serves as an “online social network where members develop personalized web profiles to interact and share information with other members.”24 Facebook users share a variety of information on this website including “news headlines, photographs, videos, personal stories, and activity updates.”25 Users publish such information to their own personal user profiles and the information is then accessible by the users’ “friends,” who are other Facebook users within their online network.26
According to Facebook, more than three billion “likes” and comments are posted on its website every day.27 The “like” button, represented by a “thumbs up” symbol, is a way for Facebook users to indicate to other users that they enjoy something that another user posted on the website.28 When a Facebook user “likes” something on Facebook, that user’s name is published beneath the item and a story is published on the user’s timeline.29 “Liking” a particular Facebook page signifies that the user is connecting to that page; the page will appear on the user’s timeline and the user will appear on the page as a person who “likes” that page.30 Further, when a user “likes” a page it may also appear on the user’s “friend’s” News Feeds and other places on Facebook.31
In Bland, one of the plaintiffs visited Adams’ campaign Facebook page and clicked the “like” button. As a result, his name and picture were added to Adams’ campaign Facebook page, and the campaign Facebook page’s name and Adams’ photo was likewise added to this plaintiff’s profile. “Liking” Adams’s campaign Facebook page served as an announcement to all of the plaintiff’s Facebook “friends” and all Facebook users viewing the campaign Facebook page that this plaintiff supported Adams. The Fourth Circuit held that, in understanding the implications of “liking” the campaign Facebook page, it becomes evident that such conduct qualifies as speech.32 The court explained that on the most rudimentary level, clicking the “like” button creates a published statement that the user “likes” something, which qualifies as a substantive statement.33 Here, in the context of the plaintiff “liking” a political campaign Facebook page, it is abundantly apparent that the “like” indicated that the plaintiff approved of Adams’ candidacy.34 The court held that whether the plaintiff “liked” the political campaign’s Facebook page with the click of a mouse or typed out the same message with individual keystrokes was of no constitutional significance.35 Further, the Fourth Circuit stated that while “liking” Adams’ campaign Facebook page constituted pure speech, it was also symbolic expression.36 The “thumbs up” icon that Facebook associates with “liking” a page conveyed the plaintiff’s endorsement of Adams’ candidacy.37 Thus, the Fourth Circuit held that “liking” a political candidate’s campaign Facebook page communicates to people viewing the plaintiff’s profile or campaign Facebook page that the user approves of and supports the candidate—the Internet equivalent of displaying a political sign on one’s front yard.38
The Internet has undoubtedly increased the public’s ability to access information about political candidates and the issues surrounding their campaigns. Social media, in particular, provides political candidates with an effective and cost-efficient platform, which allows the candidates to reach out to, and gain support from, an ample amount of individuals.39 Social media gives candidates the platform and ability to update their supporters on a moment’s notice and develop personal connections with their constituents.40 Arguably, candidates and elected officials who are not using social media are at a disadvantage to those who are because familiarity breeds trust. Moreover, social media websites, such as Facebook, provide a platform that allows voters to become involved in the political process without having to leave their computer screens. Never before has it been easier for people from every corner of the political sphere—from voter to candidate—to communicate their ideas and opinions.
It is critical that courts be insistent that the breadth of the First Amendment encompasses speech created through the use of modern technologies, as many are using social media as their preferred avenue to express their political views and ideas. Print newspaper, radio, and television have given way to the Internet. Social media websites are changing the nature of political campaigns and speech itself. Websites such as Facebook, Twitter, and YouTube are among the most popular websites used for political speech, conversation, and coordination.41 Although the court in Bland properly determined that “liking” a campaign’s Facebook page constitutes speech within the meaning of the First Amendment, it would be naive to assume that First Amendment issues concerning expression on social media have been resolved. It is more likely that Bland will set the stage for courts to consider, if they have not been doing so already, other aspects of social media that should be afforded constitutional protection under the First Amendment. For instance, if “liking” a campaign’s Facebook page is protected under the First Amendment, does that protection extend to merely “sharing” a campaign’s Facebook page?42 It is probable that Bland will serve as a catalyst and model for courts to broaden, rather than redefine, the concept of protected political speech in an age where social media has become embedded in the political process. While the Fourth Circuit in Bland upheld the Supreme Court’s tradition of broadly construing what constitutes protected political speech (including both pure and symbolic), it is crucial that courts continue to do the same in this era of rapid technological progress.
Josephine Unger, Case Note, Thumbs Up: Fourth Circuit in Bland Determines Facebook “Likes” Are Protected Under the First Amendment, 1 Suffolk U. L. Rev. Online 124 (Dec. 6, 2013), http://www.suffolklawreview.org/unger-bland.
On the morning of Sunday, April 15, 2007, a Boston police officer was patrolling the streets of Dorchester when he spotted Kempess Sylvain apparently engaged in a sexual act with a prostitute.1 As the officer approached, he saw Sylvain take several small plastic baggies from his coat and place them into his mouth. A search of Sylvain revealed an additional baggie of crack cocaine. He was arrested and charged with possession of cocaine with intent to distribute and a drug violation in a school zone, as the incident occurred within 1000 feet of a childcare center.2 Sylvain—a noncitizen lawfully residing in the United States—pled guilty to simple possession of cocaine and received a suspended sentence. As a result, Sylvain automatically became subject to deportation, as the narcotics offense to which he pled guilty was a removable offense under federal immigration law.3
In 2010, the Supreme Court held in Padilla v. Kentucky that a defendant’s Sixth Amendment right to effective assistance of counsel includes the right to advice on whether pleading guilty carries the risk of deportation.4 In 2011, the Massachusetts Supreme Judicial Court (SJC) ruled in Commonwealth v. Clarke that Padilla applied retroactively to all guilty pleas obtained after April 1, 1997, the date on which Congress implemented the current immigration laws regarding deportation for criminal convictions.5 Clarke opened the door for Sylvain to appeal his conviction and, in 2012, he did. Sylvain alleged that his lawyer failed to advise that he could be deported if he pled guilty and that he would not have done so had he been so informed.6 While Sylvain’s appeal was pending, the Supreme Court decided Chaidez v. United States, which held that Padilla does not apply retroactively under federal law, effectively overruling the SJC’s decision in Clarke.7 Upon hearing Sylvain’s appeal, the SJC diverged from the Supreme Court and held that, as a matter of state law, Padilla applies retroactively under the Sixth Amendment and Article XII of the Massachusetts Declaration of Rights.8
Padilla Rights and the Question of Retroactivity
The Sixth Amendment entitles criminal defendants to effective assistance of counsel in defending the charges against them.9 If defendants fail to receive such assistance, they may seek post-conviction relief under the two-prong test set forth in Strickland v. Washington by proving that: their counsel’s representation fell below an objective standard of reasonableness, and they were prejudiced by their lawyer’s deficient performance such that the result of the proceeding most likely would have been different but for the lawyer’s errors.10 Strickland set a general standard of reasonableness to be applied on a case-by-case basis rather than defining a specific manner in which defense attorneys must advise their clients in any given scenario.11 In Padilla, the Supreme Court interpreted the Sixth Amendment within this construct and held that failing to advise criminal defendants on whether pleading guilty would subject them to deportation amounts to constitutionally deficient representation, thereby satisfying the first prong of the Strickland test.12 The Padilla Court did not, however, expressly address whether this interpretation of Sixth Amendment rights applied retroactively to defendants whose convictions had already become final.
A court ruling that relates to an issue of constitutional criminal procedure applies retroactively only if it relies upon preexisting law. Thus, if a decision announces a “new” rule, then it only applies prospectively and to cases that are on direct review at the time of the decision.13 The Supreme Court first articulated this framework in Teague v. Lane, establishing that a rule is new if it “breaks new ground or imposes a new obligation” on the government or “if the result was not dictated by precedent existing at the time the defendant’s conviction became final.”14 In later cases, the Supreme Court clarified that a result is “dictated by precedent” only if it would have been “apparent to all reasonable jurists” at the time of the decision.15 In other words, a case does not announce a new rule under Teague if it merely applies an already existing principle to a new factual context.16 In 2008, the Supreme Court decided in Danforth v. Minnesota that Teague sets a floor for the retroactive effect of rulings on criminal procedure rather than a ceiling.17 Under Danforth, states reviewing their own criminal convictions are free to adopt their own standards for retroactivity and give broader retroactive effect to court rulings on criminal procedures than would otherwise be available under Teague.18 Indeed, states define crimes, punishments, and procedural rules in a variety of ways; thus, as long as those rules do not violate the U.S. Constitution, they are not limited by an abstract federal interest in uniformity.
In the wake of Padilla, state and federal courts quickly diverged on the question of whether the Supreme Court’s holding constituted a new rule under Teague and applied retroactively.19 In Clarke, the SJC became the first state supreme court to interpret Padilla as having retroactive effect.20 Applying the Teague framework, the SJC held that the Supreme Court had not announced a new rule in Padilla, but merely applied the well-established Strickland standard to a new type of ineffective assistance claim.21 The SJC relied on the Supreme Court’s own characterization of Strickland as a general standard that “provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims.”22 In February of 2013, however, the Supreme Court held in Chaidez that Padilla did announce a new rule of criminal procedure, which therefore did not apply retroactively. The Chaidez Court pointed to the fact that, prior to Padilla, state and federal courts almost unanimously agreed that criminal defense attorneys were not required to advise clients of the immigration consequences of pleading guilty. The Court therefore reasoned that the result in Padilla was not “apparent to all reasonable jurists” prior to the decision.23
Massachusetts Splits From the Supreme Court in Sylvain
In Commonwealth v. Sylvain, the SJC rejected Chaidez and reaffirmed its holding in Clarke, ruling that Padilla did not announce a new rule and therefore applies retroactively to those convicted in Massachusetts after April 1, 1997.24 Additionally, for the first time the SJC expressly announced that Article XII of the Massachusetts Declaration of Rights imposes the same obligation to advise defendants of the potential immigration consequences of pleading guilty as the Sixth Amendment does, and that a defendant’s right to such consultation also applies retroactively.25 Applying Massachusetts’ equivalent of the Strickland standard to Sylvain’s ineffective assistance claim, the SJC decided that his counsel’s representation was constitutionally inadequate, but remanded the case for further findings on whether Sylvain would have actually proceeded to trial had his lawyer properly informed him of the consequences of pleading guilty.26
The SJC arrived at its conclusion by exercising its authority under Danforth to define its own standard—independent of that used by the Supreme Court in Chaidez—to evaluate the retroactive effect of Padilla. After surveying the Supreme Court’s retroactivity jurisprudence, the SJC characterized Teague and its progeny as establishing different definitions for what constitutes a new rule. The SJC rejected the “apparent to all reasonable jurists” standard and adopted what it characterized as the “original” Teague standard—that is, a case announces a new rule only when precedent does not dictate the result.27 Under this narrowed retroactivity framework, the SJC reached the same conclusion as it did in Clarke for the same reasons: Padilla did not announce a new rule because Strickland dictated the result. The SJC asserted that Strickland is a general standard intended to evolve with prevailing professional norms and that Padilla was simply the Supreme Court’s recognition that professional norms now demand that defense counsel advise their clients on the immigration consequences of pleading guilty.
Retroactivity in the Realm of Criminal Law: Finality Versus Fairness
The question of whether to give convicted criminals additional constitutional rights by applying them retroactively poses a conflict between the fundamental values of ensuring the finality of criminal convictions and treating similar defendants the same. Our criminal justice system is premised on the idea that all convictions are final not only to protect the integrity of jury trials, but also to avoid draining the government’s resources by forcing it to continually relitigate cases.28 Some courts have warned that applying Padilla retroactively would open the floodgates to an overwhelming number of appeals by noncitizen convicts, creating an unmanageable administrative burden for courts.29 Moreover, allowing for the retrying of cases from years ago creates the potential for factually guilty defendants to go unpunished because the government is unable prove its case again without the same witnesses available.
On the other hand, considerations of fairness and justice are nowhere higher than when individual liberty and constitutional rights are at stake. Deciding that a criminal defendant on one day is entitled to certain legal advice, but a day earlier would not have been entitled to that same advice, seems unacceptably arbitrary given that such advice may be the difference between remaining in the United States and being deported. Such a result seems even less fair considering that deportation may, in many instances, be a grossly disproportionate punishment for the crime charged.30 Additionally, Strickland remains a high standard that any noncitizen hoping to challenge their conviction under Padilla must still hurdle, which may mitigate the number of frivolous Padilla appeals and the possibility of guilty defendants going free.
In Sylvain, the SJC decided that the concerns over fairness demanded that Padilla rights be made available to all defendants convicted under the current federal deportation laws and outweighed the potential costs of relitigating convictions. In Massachusetts, the most obvious consequence of Sylvain is that noncitizen defendants who pled guilty during the fourteen years before Padilla may now bring ineffective assistance claims if their lawyer did not advise them on the immigration consequences of pleading guilty. Although, as the SJC noted, it was already the norm in Massachusetts to advise defendants on the immigration consequences of pleading guilty, Sylvain reaffirms for the defense bar that the deportation warning given during a plea colloquy does not sufficiently alert defendants to the risks of pleading guilty.31 Thus, defendants may utilize Padilla on both Sixth Amendment and Article XII grounds. A less obvious consequence of Sylvain is that Massachusetts now has a new, albeit largely similar, retroactivity standard under which the SJC will analyze all future rulings on constitutional matters of criminal procedure.32
If nothing else, Sylvain demonstrates the unique balance between state and federal law that defines the United States’ federal system. Massachusetts is the first state to sidestep Chaidez and apply Padilla retroactively as a matter of state law, as the six other state supreme courts to face this issue have all affirmed Chaidez.33 States that have yet to decide the issue may look to Massachusetts, as a case study, on whether the floodgates open and how many constitutionally infirm pleas are remedied that otherwise would not have been. Sylvain could serve as a beacon that leads other states to exercise their authority under Danforth to define their own retroactivity standards and apply Padilla retroactively; particularly in those states that declared Padilla retroactive prior to Chaidez. If Sylvain remains an outlier, it will nevertheless continue to serve as an important reminder of the distinction between the existence of a constitutional right and its procedural availability.
Evan M. O’Roark, Case Note, The Massachusetts Supreme Judicial Court Contravenes United States Supreme Court in Sylvain, Ruling Padilla Rights Apply Retroactively, 1 Suffolk U. L. Rev. Online 98 (Dec. 3, 2013), http://www.suffolklawreview.org/oroark-sylvain.
Described by Justice Alito as “perhaps the most important criminal procedure case that this Court has heard in decades,” the Supreme Court’s decision in Maryland v. King will have far-reaching Fourth Amendment implications.1 In 2008, the Maryland General Assembly passed the Maryland DNA Collection Act, amending a 2002 statute that expanded police authority to collect DNA samples from those arrested for certain offenses.2 Under the statute, samples are collected at the time of arrest, but can only be analyzed once the arrestee has been charged and arraigned.3 Once collected, the DNA sample is immediately processed, submitted to the FBI’s Combined DNA Index System database (CODIS), and compared against other samples.4
The Arrest, the Swab, and the Rape Conviction5
On April 10, 2009, police arrested Alonzo Jay King, Jr. in Wicomico County, Maryland on first- and second-degree assault charges. King’s arrest for a violent crime authorized police to collect a buccal swab DNA sample from him by rubbing a cotton swab on the inside portion of King’s mouth. The Maryland State Police Forensic Sciences Division uploaded the sample to the Maryland DNA database in July, and recorded a “hit” in August, matching King’s DNA to an unsolved rape case from 2003. In that case, a disguised man broke into the home of a fifty-three-year-old woman and raped her while holding a gun to her head. The woman could not identify her attacker, but police were able to collect a sample of the attacker’s semen.
Based solely on the DNA evidence, the Wicomico County grand jury returned an indictment against King for first-degree rape in October. At trial, King filed a motion to suppress the DNA evidence, arguing the Act authorized an illegal search and seizure, which could not survive scrutiny under the Fourth Amendment. After the hearing judge denied the motion to suppress, King was subsequently convicted of first-degree rape and sentenced to life in prison without the possibility of parole. King appealed, but Maryland’s highest court—the Court of Appeals of Maryland—granted certiorari before the intermediate appellate court rendered a judgment.6 The Court of Appeals then reversed, holding that the Act violated the Fourth Amendment. The State appealed to the United States Supreme Court and filed a request for a stay pending the disposition of the writ.7 Chief Justice Roberts granted the stay because the State had established a reasonable possibility that the Court would grant certiorari and a fair prospect that the Court would reverse the decision below.8 On November 9, 2012, the Court granted certiorari and heard oral arguments on February 26, 2013.9
A Brief Look at Balancing the Fourth Amendment and an Arrestee’s Expectation of Privacy
The Fourth Amendment protects people from “unreasonable searches and seizures” without a warrant supported by probable cause that describes with particularity “the place to be searched, and the persons or things to be seized.”10 The Supreme Court incorporated the Fourth Amendment to the states in 1961 by holding that evidence obtained by searches and seizures in violation of the Constitution is inadmissible in state courts.11 There is “no fixed formula” for determining a Fourth Amendment violation; instead, the ultimate question is whether the actions by police were reasonable enough under the circumstances to satisfy the Fourth Amendment’s requirements.12 The basic rule is that warrantless searches are per se unreasonable “subject only to a few specifically established and well-delineated exceptions.”13 In Pennsylvania v. Mimms, the Court stated that lower courts should consider “‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’”14
Reasonableness may mean that neither a warrant nor probable cause is required in all cases. Individualized suspicion is often required, but the “‘Fourth Amendment imposes no irreducible requirement of such suspicion.’”15 Indeed, the Court has cautioned that individualized suspicion is “not a constitutional floor, below which a search must be presumed unreasonable.”16
In Samson v. California, the Court analyzed the search under a “totality of the circumstances” test by balancing the State’s interest against the parolee’s legitimate privacy expectation.17 Although the defendant in Samson was a parolee, the “totality of the circumstances” analysis would be the same with any suspect in police custody because of a diminished expectation of privacy.18 In the particular case of arrestees, the Court recognized that they have a diminished expectation of privacy, placing them further across the continuum from law-abiding citizens to convicts, probationers, and parolees. Recently, the Court upheld the strip search of an arrestee for a traffic offense as reasonable under this analysis because the government’s interest in safety outweighed the arrestee’s diminished expectation of privacy.19
Although the Court has not discussed buccal swabs in the past, it has recognized other extractions of DNA material—such as drawn blood—as a search.20 In conducting that analysis, however, the Court has also held that if performed appropriately, blood draws are not so invasive as to violate the Fourth Amendment.21 Additionally, courts have allowed law enforcement to collect DNA samples from arrestees when they have “abandoned” or not demonstrated a subjective expectation of privacy as to items that contain their DNA, such as left-behind water bottles or cigarette butts, because this type of DNA collection is not a search in the constitutional sense.22 Neither party to the suit questions that DNA collection is a search in the constitutional sense, but they do diverge on how to characterize this search.23 The lower courts in Mitchell and King held the processing of the DNA sample and creation of the DNA profile in CODIS to be a second search, but disagreed on its constitutionality because of the extensiveness of information that “junk DNA” can provide to the government.24
Two federal appeals courts and one state supreme court previously upheld statutes similar to the Maryland act as permissible under the Fourth Amendment.25 In United States v. Mitchell, the Court of Appeals for the Third Circuit conducted a balancing analysis of the Federal DNA Act and held that collecting a DNA sample was minimally intrusive and did not weigh significantly in the defendant’s favor.26 The court held that the method used to process the DNA, so called “junk DNA,” contained very little information beyond identification, and other safeguards were sufficient to render the search reasonable for Fourth Amendment purposes.27 The Ninth Circuit and the Virginia Supreme Court, like the Third Circuit, have upheld the everyday practice of collecting DNA from arrestees, common to federal law enforcement and twenty-eight states.28
Maryland Creates a Split and Draws the Court’s Attention
In King, the Court of Appeals of Maryland split with these courts and held that the DNA search was unreasonable under the Fourth Amendment.29 The court applied the “totality of the circumstances” test and found for the defendant because King, as an arrestee, was entitled to a presumption of innocence that convicted felons, probationers, and parolees did not receive. Reasoning that the respondent’s expectation of privacy outweighed the State’s interest in using DNA for identification purposes, the court rejected the State’s need for the DNA to identify the defendant because fingerprints and photographs had already adequately identified King. The court rejected the State’s argument that DNA samples are a modern, more accurate form of ink fingerprinting because the vast amount of genetic data that an arrestee’s DNA may contain distinguishes it from a simple fingerprint. Simply put, the court held that a lawful arrest for a crime of violence cannot serve as probable cause for a DNA search of an arrestee.
At oral argument on February 26, 2013, the Supreme Court focused predominantly on the primary purpose of the legislation and the comparison between “DNA fingerprinting” and ink fingerprinting.30 The State and the Solicitor General compared the evolution of speed and accuracy of ink fingerprinting with where “DNA fingerprinting” will likely be, in as few as two years.31 Chief Justice Roberts expressed hesitation to decide a case based on the future possibilities of the technology, but Maryland countered that the technology is already more accurate than ink fingerprinting and can be used to revoke bail if a “hit” comes back from the database.32 Despite heavy reliance by the Maryland Court of Appeals on the presumption of innocence, the justices seemed more interested in the possession of DNA by the government and the speed of processing the samples.
What Is the Initial Inquiry: Per Se Unreasonable or Balancing?
Both Justice Kagan and the respondent indicated that the initial analysis is usually not a balancing of the interests at play, but a requirement that the state meet one of the established Fourth Amendment warrant exceptions because warrantless searches are per se unreasonable.33 In this case, none of the traditional exceptions, such as search incident to arrest or exigent circumstances, would apply. The Court could create a new exception to the warrant requirement for biometric data generally.34 The Court could also attempt to fit this situation into a recognized exception such as a search incident to arrest; however, this is unlikely because the search would not fit into the twin rationales of officer safety or preservation of evidence.35 These outcomes are unlikely, but the Court could find for the State through a straightforward balancing analysis. Warrantless searches are per se unreasonable, but that does not end the inquiry. A balancing of interests determines ultimately whether the government’s actions were reasonable.
DNA identification is in the same place technologically that ink fingerprinting was twenty to thirty years ago, before powerful computer databases or even the Internet existed.36 Both ink fingerprinting and DNA sampling are used for identification, but both also match arrestees to crimes. The test of reasonableness by balancing interests has resulted in the Court holding that warrantless searches without individualized suspicion can still be reasonable in certain circumstances, such as when the privacy interest is minimal, the government’s purpose will be frustrated by requiring a warrant, and safeguards are in place to limit discretion.37 The warrantless “search” of fingerprinting arrestees has never been squarely addressed by the Court, but King conceded that given the widespread use of fingerprinting, the practice is most likely constitutional.38 “DNA fingerprinting” more accurately addresses the governmental interest in properly identifying arrestees, determining whether to detain or release them, and devising methods to best supervise them.39 Finally, the amici curiae brief of the fifty states persuasively argued that collecting DNA samples from arrestees serves the compelling governmental interest in solving crimes because of the number of previously unsolvable cold cases that have been solved by collecting DNA samples from arrestees.40
The State does have a significant interest in accurately identifying arrestees, and DNA collection assists the State in adequately supervising pretrial detainees. The use of DNA also leads to more efficient criminal investigations by eliminating suspects and conserving resources.41 Nevertheless, processing DNA continues long after the arrestee has been identified, so the purpose must also be identification of arrestee involvement in previously unsolved crimes. Although not explored fully in oral arguments, the length of time DNA identification currently takes could be compared with the length of time ink-fingerprinting identification took prior to the incorporation of computer databases.42 The safeguards surrounding the processing and use of the DNA sample constitute a reasonable search under a “totality of the circumstances” analysis because the search is minimal and the DNA processing can only reveal the identity of the arrestee as random numbers. Thus, the only loss of privacy is in being accurately identified, and there is no established, reasonable expectation of privacy in anonymity, especially after an arrest.43
If the Supreme Court decides to uphold the Maryland Court of Appeals and rules “DNA fingerprinting” of arrestees unconstitutional, it would have far-reaching implications because many states and the federal government have enacted similar legislation. The fact that every state—including those without similar legislation—has filed in support of petitioner should not be overlooked. It is unusual for the Court to take up a case that has not been fully vetted in the lower courts. However, the shockwaves that this decision could make by overruling other appellate courts and striking down a widely used practice demonstrate the need to resolve this dispute.
Ultimately, the Samson “totality of the circumstances” balancing test to determine reasonableness is appropriate. The governmental interests in identifying suspects and solving unrelated offenses should be sufficient to outweigh the privacy interest in preventing access to an individual’s genetic code, especially when combined with the safeguards already in place to protect the arrestee’s genetic information. A decision in favor of Maryland could establish that the Samson “totality of the circumstances” analysis to determine reasonableness is the initial inquiry for Fourth Amendment purposes. This outcome could signal that provided a state acts reasonably, a number of activities previously barred by the Fourth Amendment now could be legitimate.
A decision in favor of King, on the other hand, would not only result in massive upheaval of routine law-enforcement practices, but would lead to fewer solved crimes. Such an outcome may also stunt the evolution of DNA identification, the speed of which could eventually match that of ink fingerprinting today. Should the court rule in favor of King, it would also necessarily draw a distinction for the first time between the privacy rights of arrestees and parolees.
Should the Court reverse the Maryland Court of Appeals, the bench will likely carefully narrow the opinion to limit future expansive uses of this information. The Court could require the state to bear the heavy burden of demonstrating that the DNA samples are appropriately handled and only used for identification purposes.
Ultimately, the Court should reverse the Maryland Court of Appeals because on balance the statute is reasonable. The minimal intrusion to the arrestee is offset by the improvement of suspect identification for bail supervision, the important governmental interest in solving crimes, and statutory safeguards. Had a similar case found ink fingerprinting (which does not require individualized suspicion) unconstitutional, many law-enforcement practices that we currently consider normal and routine would not exist, compromising law enforcement’s effectiveness. Striking down statutory DNA identification would cut short future technological advances that could make the use of DNA fingerprinting equivalent to current ink-fingerprinting practice, yet much more effective and accurate.
David C. Soutter, Case Note, Twenty-First Century Fingerprinting: Supreme Court in King to Determine Privacy Interest in Arrestee DNA, 1 Suffolk U. L. Rev. Online 47 (Apr. 22, 2013), http://www.suffolklawreview.org/king-maryland.
On Friday, April 6, 2007, Howard Cotterman and his wife, Maureen, drove across the border from Mexico, seeking reentry to the United States at the Lukeville, Arizona Port of Entry (POE).1 A primary inspection of Cotterman’s passport revealed an alert due to Cotterman’s 1992 conviction for sex offenses involving a minor, and a Customs and Border Protection (CBP) officer conducted a secondary inspection of the Cottermans’ vehicle.2 The CBP officer found two laptop computers and three digital cameras, and he contacted the Immigration and Customs Enforcement (ICE) office in Sells, Arizona for assistance when he discovered that many of the computer files were password protected. Two ICE agents drove from Sells to Lukeville, collected the laptops, and delivered them to a computer forensic examiner at the ICE lab in Tucson late that same night.3
The forensic examiner worked through the weekend, and by the evening of Sunday, April 8, he had discovered approximately seventy-five images of child pornography on Cotterman’s laptop.4 Over the days and weeks that followed, the examiner unlocked hundreds of additional photos and videos of a similar nature, most of them involving the same young girl. The federal government indicted Cotterman on child pornography charges on June 27, 2007.5
Following his federal indictment, Cotterman moved to suppress the evidence collected from his laptop.6 Cotterman argued that federal agents discovered the evidence through an unreasonable, nonroutine border search, as the search failed to meet the heightened standard of suspicion of criminal conduct required for such searches.7 The Government, however, argued that the search of Cotterman’s computer files fell within the routine border-search exception, which does not require a heightened standard of individualized suspicion.8 The district court agreed with Cotterman, granting his motion to suppress and holding that the search failed to meet the requisite heightened standard.9 On appeal, the Ninth Circuit reversed the district court, holding that neither the relocation of Cotterman’s laptop nor the delay necessary to search it fully were unreasonable for a routine border search, given the circumstances of the seizure.10 Now, the Ninth Circuit has reheard the case en banc, with the opinion pending before the court.11
Privacy and National Security: A Delicate Balance
Under the Fourth Amendment, individuals maintain a reasonable expectation of privacy in both their persons and property, and any search or seizure must meet certain standards of reasonableness for seized evidence to be admissible.12 The Fourth Amendment’s protections are not absolute, however, as federal courts have created limited exceptions for warrantless searches.13 The judicially created border-search doctrine gives the government broad authority to conduct searches of persons and property seeking entry at the country’s borders.14 A person seeking entry (or reentry) into the United States abandons the usual expectation of privacy and subjects himself to a routine search of his belongings by government officials.15 National security interests support protecting the integrity of the country’s borders, creating a policy rationale for the lessened standard of suspicion governing searches conducted there.16
The Ninth Circuit has determined that whether a search is routine or nonroutine is largely based on the degree of intrusiveness of the search at the border.17 While a nonroutine border search requires reasonable suspicion of the search’s target, the Ninth Circuit considers the search of a vehicle—even an extensive search—routine and therefore constitutional, despite the absence of any particularized suspicion.18 The Ninth Circuit has embraced an extended border-search doctrine, which furthers the government’s authority to conduct searches away from—but near to—the physical border subsequent to the individual’s seeking entry. However, for these extended border searches to be constitutional, the government must meet the heightened standard of reasonable suspicion.19
The Ninth Circuit has afforded the government broad authority in searching electronic devices while conducting border searches.20 The court previously held that border searches of laptop computers are routine and therefore do not require reasonable suspicion.21 Further extending the border-search doctrine, the Ninth Circuit has included searches taking place at the border’s functional equivalent, not just at the physical border.22
Extended Border-Search Doctrine: How Far Is Too Far?
In Cotterman, the Ninth Circuit’s prior opinion considered the application of the border-search doctrine to laptop computers and other electronic devices. The majority determined that the search of Cotterman’s laptop fell within the border-search doctrine, for which no reasonable suspicion was necessary to conduct the search.23 Although the Government removed the computer from the border to conduct a thorough forensic search, the court reasoned that this did not constitute an extended border search requiring reasonable suspicion.24 The majority also distinguished a computer search from property searches of a highly intrusive, invasive, or destructive nature.25 The Ninth Circuit subsequently reversed the district court’s order granting Cotterman’s motion to suppress and remanded the case to the district court.26
Judge Fletcher dissented, arguing that the court failed to distinguish search from seizure and therefore left open the possibility of the government seizing personal property for days, weeks, or months without any suspicion.27 Judge Fletcher argued instead that the circumstances surrounding the scope of the Government’s lengthy detention of Cotterman’s laptop required individual suspicion. The seizure deprived Cotterman of his possessory interest without any clear limit on the scope of the search, Judge Fletcher wrote, and the search therefore intruded on his reasonable expectation of privacy.28
As the Ninth Circuit acknowledged in Cotterman, the border-search doctrine stands as a crucial exception to the Fourth Amendment’s guarantee against unreasonable searches and seizures.29 Even when balanced against the rights enjoyed by all individuals, the security interests of the sovereign remain paramount, and suspicionless searches are essential to protecting the country’s borders.30 This balancing test creates a necessary tension between national security interests and the personal privacy of individuals subjected to border searches.31 Both the majority and the dissent observed that advances in portable computers and other electronic devices further complicate this balancing test, as the difficulty in accessing encrypted data threatens to make searches increasingly invasive. An otherwise routine border search becomes more intrusive if government officials cannot access property using normal means that fall within the scope of their search authority.32
By granting a rehearing, the Ninth Circuit implicitly acknowledged Judge Fletcher’s concerns about the extent to which the majority’s holding broadened the government’s increasingly unbridled search and seizure power at the border.33 The majority weighed the sovereign’s interests heavily, permitting a lengthy and suspicionless seizure of property despite the constitutional protections of the Fourth Amendment. While that right—freedom from unreasonable searches and seizures—is not absolute, its further erosion would be difficult to halt under the Ninth Circuit’s original opinion, a fact perhaps recognized by the court’s grant of a rehearing.34 The court had insisted on a case-by-case analysis of the reasonableness of a border search, and the majority scoffed at the “parade of imagined horribles” conjured by those who seek to draw a clearer line between the country’s national security interests and an individual’s privacy right.35 Ultimately, the best solution may require congressional action, setting specific limits on the number of hours or days during which an electronic device may be seized pursuant to a routine border search.36
Border searches of laptop computers present relatively new opportunities to obtain vast amounts of personal information concerning those entering the United States. While government officials attempt to take advantage of these search opportunities, continued advances in computer technology will make searches more difficult to conduct, thereby extending the period of time needed for each search.37 The Ninth Circuit’s opinion neither demanded a reasonable-suspicion standard for border searches of laptops nor defined a reasonable period of time in which to conduct them, thus permitting government officials to search a personal computer until they find evidence of a crime regardless of whether there is any individualized suspicion.38 The court sought clarification on both issues upon rehearing.
A Question for the Supreme Court?
Terrorist plots, drug trafficking, and child pornography present scenarios that easily justify broadening the government’s authority to conduct invasive and prolonged searches at the border. Nevertheless, this expansion of the border-search doctrine could submit any traveler’s electronic files to an invasive computer search of unknown duration.39 By finding the detention of a laptop computer reasonable for any duration necessary to conduct a comprehensive search, the Ninth Circuit initially granted the government excessive latitude for conducting border searches.40 If the en banc panel issues an opinion consistent with the original, citizens traveling abroad should carefully consider the contents of their laptops, cell phones, and other devices before bringing them along and subjecting them to an exhaustive search upon return.
The Fifth Circuit has also defined the border-search doctrine broadly, but other courts of appeals have varied when applying the doctrine.41 The Ninth Circuit’s rehearing presented an opportunity to address the proper determination of ‘reasonableness’ under the border-search doctrine, but also pointed to the likelihood of the Supreme Court taking up the issue. National security interests are in conflict with the privacy rights of every international traveler, and while the border-search doctrine has balanced those interests in the past, Cotterman opened wide the floodgates. Anyone entering or reentering the United States with a laptop or other electronic device would find those devices subject to seizure of substantial duration, as well as a search that raises questions about reasonableness. The Supreme Court will likely need to define the scope of the border-search doctrine for the digital age, and the Ninth Circuit’s rehearing en banc sets the stage for that to happen.42
The Ninth Circuit issued their decision in the case on March 8th. It can be found at http://cdn.ca9.uscourts.gov/datastore/opinions/2013/03/08/09-10139.pdf.
Hilary Detmold, Case Note, The Ninth Circuit’s En Banc Rehearing of Cotterman: What’s on Your Laptop?, 1 Suffolk U. L. Rev. Online 32 (Feb. 25, 2013), http://www.suffolklawreview.org/detmold-cotterman.