Edward Snowden's clemency hurdles

I use Grammarly's plagiarism checker because I trust my writing more than yours!

In light of Edward Snowden's recent interview, I thought it might be interesting to take a look at some of the roadblocks that stand in the way of clemency. I should be clear up front that I take no position on whether Edward Snowden should actually be granted clemency. Neither is this post intended to be a policy statement or value judgment about the United States' surveillance operations or capabilities. That being said, these are some of the things that I would consider if I were in a position to make a decision.

First, in a June 12, 2013 interview with the South China Morning Post:

Snowden has admitted he sought a position at Booz Allen Hamilton so he could collect proof about the US National Security Agency's secret surveillance programmes ahead of planned leaks to the media. 

"My position with Booz Allen Hamilton granted me access to lists of machines all over the world the NSA hacked," he told the Post on June 12. "That is why I accepted that position about three months ago."

(Full disclosure: I work at Booz Allen). Having already collected classified documents in his previous job, he quit and took a new job specifically for the purpose of obtaining additional classified information. This is tough to reconcile with the image of a whistleblower. If the goal of a whistleblower is to "exposes misconduct, alleged dishonest or illegal activity," then (at least by his standards), he could have done that without an additional trove of classified documents.

Second, Snowden's motives seem inconsistent with his actions. If his goal was to shine a light on what he perceived as violations of Americans' civil liberties, then the documents he released were far broader than was necessary to achieve that motive. While information on the phone metadata surveillance program certainly relate to the privacy concerns of American citizens, the details of surveillance operations against valid foreign intelligence targets has no rational relationship to American citizens. On the other hand, if his goal was to address the problem of indiscriminate mass surveillance, then the details of those same surveillance operations against valid foreign intelligence targets also miss the mark. While Snowden claims that "[n]ot all spying is bad," it remains to be seen if Snowden (or friendly journalists like Glenn Greenwald) have proffered any evidence of foreign intelligence programs that they support. Snowden seems to suggest that foreign surveillance might violate international law, but I'm not aware of any international obligations that limit the foreign surveillance abilities of the United States (or any other countries' abilities to surveil Americans or other countries).

Third, in an open letter to the people of Brazil, Snowden offered to assist Brazilian senators in investigations of suspected crimes against Brazilian citizens. He said he would be willing to do so where it was "appropriate and lawful," but it's difficult to imagine a circumstance where an American citizen could assist a foreign government in investigating surveillance by the United States against that country (in exchange for asylum), and do so in an appropriate and lawful manner.

Attorney General Eric Holder has rejected clemency as an option. Perhaps the United States government has decided that the hurdles identified above are too high of a climb to overcome.

Shmoocon Firesides 2014 (Having Your Cake and Eating It Too: FOIA, Surveillance, and Privacy)

A correction to my talk: the pen register was installed by the police to record the numbers dialed from the telephone at Smith's home; not to record the numbers received by the telephone at the victim's home.

ShmooCon Firetalks submission

Having Your Cake and Eating It Too: FOIA, Surveillance, and Privacy

In Washington, DC, the federal government is arguing against a prolific Freedom of Information Act (FOIA) requester that his multitudinous requests, taken together, constitute a "mosaic" of information whose release could "significantly and irreparably damage national security" and would have "significant deleterious effects" on the bureau's "ongoing efforts to investigate and combat domestic terrorism." In the District of Columbia, the federal government is defending the legality of the intelligence community's surveillance programs under a 1979 Supreme Court case, Smith v. Maryland, that found constitutional use of a “pen register” device to gather information on numbers called by a criminal suspect. So, yes: the government is simultaneously arguing to that too much otherwise-legitimate FOIA data creates a mosaic that threatens national security--but large scale metadata collection, far beyond anything contemplated by a simple pen register device in 1979--is perfectly legitimate. Is this a problematic dichotomy? And if so, what can we do about it?

Here are my ShmooCon submissions

I made two submissions to ShmooCon this year. The first is a full-fledged talk and the second is a "One Track Mind" 20-minute talk. Here are the abstracts, and wish me luck!

©opyright Gone Wrong: Our Broken System and How We Can Fix It

The Constitution grants the Congress the power to enact intellectual property laws "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Since the founding of our country, protection of intellectual property has undergone several systematic changes that have extended the time rights are protected. Additionally, protections have gotten increasingly aggressive and oppressive. This presentation will briefly discuss the history and development of IP law, and then focus on the more recent and onerous provisions that have become embroiled in controversy. Along the way, we'll talk about the Digital Millennium Copyright Act,  copyright and patent trolls, and other methods of intellectual property abuse. Lastly, we will take a look at some of the ways we can reform our broken system to free consumers from burdensome restraints, while at the same time protecting the intellectual property of the creators.

Having Your Cake and Eating It Too: FOIA, Surveillance, and Privacy

In Washington, DC, the federal government is arguing against a prolific Freedom of Information Act (FOIA) requester that his multitudinous requests, taken together, constitute a "mosaic" of information whose release could "significantly and irreparably damage national security" and would have "significant deleterious effects" on the bureau's "ongoing efforts to investigate and combat domestic terrorism." In the District of Columbia, the federal government is defending the legality of the intelligence community's surveillance programs under a 1979 Supreme Court case, Smith v. Maryland, that found constitutional use of a “pen register” device to gather information on numbers called by a criminal suspect. So, yes: the government is simultaneously arguing to that too much otherwise-legitimate FOIA data creates a mosaic that threatens national security--but large scale metadata collection, far beyond anything contemplated by a simple pen register device in 1979--is perfectly legitimate. Is this a problematic dichotomy? And if so, what can we do about it?

Having your cake and eating it too: FOIA, surveillance, and individual privacy

It seems pretty obvious now (if it hasn't already been for a long time!) that the government wants to have its cake and eat it, too. On one hand, the federal government is arguing against a prolific Freedom of Information Act (FOIA) requester:

...the FBI claims that Shapiro's multitudinous requests, taken together, constitute a "mosaic" of information whose release could "significantly and irreparably damage national security" and would have "significant deleterious effects" on the bureau's "ongoing efforts to investigate and combat domestic terrorism."

In other words:

Disparate items of information, though individually of limited or no utility to their possessor, can take on added significance when combined with other items of information. Combining the items illuminates their interrelationships and breeds analytic synergies, so that the resulting mosaic of information is worth more than the sum of its parts.

On the other hand, in response to claims that the NSA's metadata collection program violates the Fourth Amendment:

...Gilligan argued that the government also believes the surveillance is legal under a 1979 Supreme Court case, Maryland v. Smith [sic], that found constitutional use of a “pen register” device to gather information on numbers called by a criminal suspect. 

“In terms of computer technology, things have changed an awful lot since ’79,” Leon replied. “The technology used in that case pales in comparison — pales in comparison to the technology NSA has at its disposal to query hundreds of millions of records … maybe billions of records in a matter of minutes or hours.” 

“Smith’s value may be very limited if at all in this case,” the judge added.

The mosaic theory of the Fourth Amendment suggests that the aggregate collection of information over an extended period of time may be considered a search. As Justice Ginsberg wrote in United States v. Jones (the GPS monitoring case), "[w]hen considered as a collective whole, the monitoring...revealed an intimate picture of the subject's life that he expects no one to have..."

So, yes: the government is simultaneously arguing to that too much otherwise-legitimate FOIA data creates a mosaic that threatens national security--but large scale metadata collection, far beyond anything contemplated by a simple pen register device in 1979--is perfectly legitimate. Both of these arguments are being made in the same city--Washington, DC--and in fact in the same court--the United States District Court for the District of Columbia. Right hand, meet the left hand.

I've submitted a CFP to Shmoocon to further discuss this issue, so if it gets picked up, I'll be able to flesh it out further.

What do you think?

No, AT&T is not charging customers a Lawful Interception Recovery Fee

For more information, follow me on Twitter.

I guess they don't tap my phone because this isn't on my AT&T statement (I just checked). What is $0.61 for? It's not even lined up correctly. Five line items, six charges? Bad math? Also, why is everyone across the entire Internet posting the same image? If they're doing this to everyone, why isn't everyone posting their own respective phone bills? Looks like bad photoshop to me. If there is evidence out there to prove me wrong, please share and I'll be the first one to admit I was wrong. Until then, I call fake.

Edited to add (8/11/13): Even if this is a legitimate, CALEA-based lawful intercept fee, that doesn't make it "NSA"-related. Two very different things.

Update (8/12/13): Nearly 10,000 people have viewed this post in the last 24 hours!

Update (8/12/13): Snopes has now this as false. They contacted AT&T who confirmed as much.

Using surveillance data in criminal investigations undermines the rule of law

From Reuters:

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

The unit is the Special Operations Division (SOD).

Agents were instructed to omit any references to the SOD from investigative reports, affidavits, any court proceedings, and in discussions with federal and state prosecutors and attorneys, state and local officials and task forces, and their foreign counterparts. Here's an example from a former federal agent:

 "You'd be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.' And so we'd alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it," the agent said... After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as "parallel construction."

It should also be troubling when a former federal judge says that she had never heard of such a program.

I see (at least) two problems with this program. The first seems obvious; the second, perhaps less so. Both are equally troubling.

First, this program seems to openly encourage agents to file misleading information with the courts. Judges rely on information submitted in affidavits for a whole host of reasons, including probable cause determinations that can go to the heart of whether an initial search was valid. When this information is inaccurate, judges rule on critical issues with less than complete information. This alone should be enough to call into doubt the legitimacy of this program.

Second, and perhaps more insidious, is that the scrubbing of SOD sourcing effectively denies a defendant the possibility of exculpatory evidence, as required by the Supreme Court's decision in Brady v. Maryland, 373 U.S. 83 (1963). Let's use the example above cited by the former agent. Suppose that, in addition to the intelligence to "be at a certain truck stop at a certain time and look for a certain vehicle," there was evidence that the driver was coerced into driving the vehicle--potentially at gunpoint, or based on a threat to someone else (i.e., a family member). This could be exculpatory evidence--but because the agents scrubbed SOD as the source, the prosecutors would never see this evidence. And then they could not provide this evidence to defense attorneys--because they would never know about it. Even if the defense blindly asked for such evidence, there is no record that it ever existed. As a result, it seems highly unlikely then that any court could find that the prosecutor withheld the evidence. Thus, no Brady violation.

In essence, defendants are being convicted based on evidence that they don't know ever existed. The prosecutors are unwitting accomplices. And the conviction by a unknowing jury or judge puts an official stamp of approval on the unseemly procedure. At its core, this program undermines the rule of law and raises serious constitutional doubts as to whether anyone convicted as a result of such evidence had a fair trial.

American Bar Association Citizen Amicus Project results

Back in December, before I had even taken a day of Criminal Procedure, I submitted an essay to the American Bar Association's Citizen Amicus Project:

The 2012-2013 Project focuses on the Fourth Amendment issues raised by law enforcement's warrantless use of trained narcotics dogs to detect narcotics from the outside of a home.  

This term the Supreme Court will hear Florida v. Jardines, a case that questions whether law enforcement's use of narcotic detection dogs in front of a home, without a warrant, violates the homeowner's Fourth Amendment right to be free from unreasonable searches.  The Supreme Court will review one question in the case: 

Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?

I posted my submission here.

The Supreme Court's opinion is here.

I just found out I received the runner-up award! Pretty good for a part-time 1L don't you think? :-)

Boston bombing roundup

This is a summary of the various posts I've put together on the Boston bombings and follow-on events this week.

This is a brief discussion of the initial bombing as a state or federal crime. Here is a follow-up to that post that identifies 18 USC § 2332a (Use of weapons of mass destruction) as the most likely top federal charge in the case (which carries the death penalty). EDIT: The criminal complaint is here; and § 2332a is indeed the top charge.

This is a brief summary of one woman's account of how the fear of the bombing has impacted her.

The Officer Down Memorial Page for MIT Patrol Officer Sean Collier is here.

Here is a brief summary of exigent circumstances, as seen after the assassination of RFK.

The case that gave birth to the "public safety exception" to Miranda is New York v. Quarles, 467 U.S. 649 (1984). The FBI's description of the public safety exception is here. Some analysis with particular relevance to this case is here. EDIT: The transcript of the suspect's initial appearance is here.

At 8:42 PM on Friday night, I reported the suspect in custody and reposted it here.

There is also imagery associated with these events: thermal imaging used in the final minutes (with raw video here), and the moment of capture, and the capture as announced via the scoreboard from the Reds/Marlins game.

Outside links of interest are Orin Kerr's posts on House-to-House Searches and the Fourth Amendment and Tsarnaev and Miranda Rights.

Facial recognition software didn't help identify the Boston suspects, even though images of both were in databases.

Reddit's involvement in trying to crowdsource the case are discussed here (from the perspective of the sister of a misidentified suspect) and here (discussing Reddit's impact on the FBI's official investigation).

Here's a video that seems to blur the line at when a consentual search takes place.

Finally, my post on the shortcomings of citizen journalism.

Thermal images were key to Boston bombing suspect’s arrest

Law in Plain English: Florida v. Jardines

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

My initial discussion of both dog sniff cases is here; with an extended discussion of Jardines here.

Florida v. Jardines

Police conducted a warrantless "sniff test" with a narcotics detection dog ("Franky") at the front door to Jardines's home. Franky alerted, and police found several marijuana plants inside. Dog sniffs have traditionally not been considered searches for Fourth Amendment purposes (for example, see here, here, and here), but those cases dealt with cars or luggage, when the expectation of privacy was less. The question before the Court was whether a dog sniff at the front door of a house in which marijuana was suspected of being grown, by a trained narcotics detection dog constituted a search under the Fourth Amendment. In a 5-4 decision, the Supreme Court ruled that the dog sniff invaded the home's curtilage. A guest might be implictitly allowed to come to a porch to knock on someone's door, but this invitation didn't extend to a trained narcotics dog. As a result, the dog sniff was considered a "search" for Fourth Amendment purposes and the seized evidence would likely be excluded. The practical impact of this decision is that police will almost certainly require warrants to use drug detection dogs when the searches are associated with homes.

Surveillance State: The Home Depot

The Home Depot nearest me (and presumably others like it) recently installed motion-activated security cameras (and monitors) all over the store and at the registers that beep annoyingly while recording. According to an employee, they're for loss prevention purposes (presumably in addition to the normal cameras that most stores already have installed).

Law in Plain English: In Re National Security Letter

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

In Re National Security Letter

The FBI issued a national security letter (NSL) to an unnamed ISP for certain subscriber information. The FBI certified that disclosure of the NSL could harm national security, so the ISP was prohibited from disclosing to anyone that they had received it (a gag order). The ISP challenged the constitutionality of the  non-disclosure provision as a violation of free speech, and challenged the judicial review provisions as a violation of the separation of powers. Judge Susan Illston of the United States District Court for the Northern District of California ruled that the nondisclosure provision was a form of prior restraint which was not narrowly tailored, since the provision applied to both the content of the NSL and the fact that the ISP even received it. As a result, it violated the ISP's freedom of speech. Additionally, the judicial review provisions violated both the First Amendment and the separation of powers principle by trying to narrow the ability of courts to review the nondisclosure orders. Furthermore, she prohibited the government from issuing any NSLs or from enforcing the nondisclosure provisions in this case and in any other cases. Lastly, she stayed enforcement of the judgement pending appeal or 90 days if there is no appeal (although that seems entirely likely).

Update (8/13/2013): I missed this a few months back, but the Government did file a notice of appeal.

NSL Order by Michael Schearer

Law in Plain English: Gabelli v. SEC

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Gabelli v. SEC

Gabelli was charged with violating a federal law by defrauding his clients. The statute of limitations required that charges be "commenced within five years from the date when the claim first accrued." The question here was "when the claim first accrued" meant when the fraud actually occurred, or when it was discovered. In a unanimous opinion, the Supreme Court ruled that the natural reading of the law required the statute of limitations began when the fraud actually occurred. To read otherwise would violate the fairness of the statute of limitations concept. In other words, the fraud charges against Gabelli were filed too late. The practical impact of this decision is that violations of federal laws subject to the statue of limitations here will begin to run when the fraud occurred, not when it was discovered.

Law in Plain English: Clapper v. Amnesty International USA

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Clapper v. Amnesty International USA

The Foreign Intelligence Surveillance Act (FISA) authorizes the Attorney General and the Director of National Intelligence to intercept certain foreign communications--generally non-US persons and persons believed to be located outside of the United States. Amnesty International USA and other human rights organizations alleged that they communicated with people who are likely to be targets of FISA, and as a result, their communications are likely to be surveilled. The question here was whether these groups had standing to challenge FISA because they had offered no evidence that their communications had been intercepted. The Supreme Court ruled (in a 5-4 decision) that these groups did show that their injury was “concrete, particularized, and actual or imminent." Allegations that such injuries might occur in the future is not enough. As a result, the Court did not rule on the constitutional merits of FISA. The practical impact of this decision is that future claims will have to identify some evidence that their communications were intercepted. Because most or all of this information is classified, it seems unlikely that anyone (aside for some  unforeseeable circumstances) will be able to adequately challenge the constitutionality of FISA.

Law in Plain English: FTC v. Phoebe Putney Health System, Inc.

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

FTC v. Phoebe Putney Health System, Inc.

A Georgia-authorized hospital authority (Phoebe Putney Health System, PPHS) managed one hospital and then purchased the only other hospital in the same county. The Federal Trade Commission (FTC) filed an anti-trust complaint alleging that having one hospital authority owning both hospitals in the county would reduce competition. PPHS claimed that as a state-authorized entity, they were entitled to state-action immunity from the anti-trust liability. The question before the Court was whether PPHS was entitled to such immunity. The Supreme Court ruled that PPHS was not entitled to anti-trust immunity because Georgia did not make it affirmatively clear that its hospital authorities could take actions that would reduce competition. The practical impact of this decision is that states that wish to give state-action immunity to their subdivisions need to do so through a clearly articulated policy.

Law in Plain English: Bloem v. Unknown Department of the Interior Employees

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

I've made a slight change to the "SCOTUS in Plain English" series to reflect the opportunity to discuss a few cases not at the Supreme Court level that are nonetheless interesting and worthy of discussion. As a result, the series is now called "Law in Plain English."

Bloem v. Unknown Department of the Interior Employees

The National Park Service distributed flyers warning Occupy protesters in McPherson Square that they would begin enforcing a prohibition on camping. Subsequently, many items of personal property (some that belonged to Bloem) were destroyed. Bloem filed a lawsuit against the unnamed Department of the Interior employees for the seizure and destruction of his property. The DoI filed a motion to dismiss, alleging that Bloem had failed to state a claim upon which relief could be granted. The District Court ruled that the tent city was expressive conduct, permitted by the First Amendment. Additionally, Bloem's allegations that the DoI had violated his Fourth and Fifth Amendment rights were sufficient, and thus Bloem had stated a plausible claim. For purposes of a motion to dismiss, which in this case is a 12(b)(6) motion, Bloem's alleged facts are presumed by the court to be true. In other words, the court looks at the case and says: even if we assume that all of his facts are true, has he made a plausible claim? This is a procedure hurdle to make sure that baseless lawsuits don't consume valuable time of the court. As a result, Bloem's claim survived the government's motion to dismiss and the case can move forward.

Bugs in the boardroom? They're already there

Despite an ongoing joke otherwise, I did not create SHODAN. On the other hand, I have blogged and presented about SHODAN in the past, and I was one of the first people to recognize the impact of SHODAN to vulnerability identification analysis.

During a recent engagement for one of my clients, I came across an unsecured instance of a Polycom web interface; in other words this web interface required zero authentication to access all of its options (including, quite obviously, its administrative options).

I developed two searches to locate these devices. The first search finds results for telnet sessions associated with these Polycom devices. To be sure, this is more of an information search to show you how many of these sorts of devices are out there (and exposed to the Internet).

The second search is more useful: it relies on a unique HTTP response and returns exposed web interfaces for these Polycom devices. Many of these instances require additional administrative authentication, but some do not. Even though some of these devices require additional authentication, it seems at least mildly surprising that some of them are exposed to the Internet, among them: "Fargo Cass Co District Court Rm 5," and "British Embassy - Brasilia."

Here are the most common options on the front page:

The difference should be immediately available: by clicking on "Admin Settings" on the top bar, you will either be prompted for a password or not. Here (when no password is required), we are taken the Admin Settings page and every option is available to us, include remote administration and monitoring.

Low-hanging fruit to be sure, but it will literally gives you eyes and ears into the conference room.

Is a dog sniff considered a Fourth Amendment search?

Here is the submission I made to the ABA's Citizen Amicus Project.

The question presented in Florida v. Jardines is whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause. Because Franky’s sniff was a sense-enhancing technology not in public use, and because the police trespassed to obtain information, the dog sniff should be held to be a search.

The Fourth Amendment provides in part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”[1]

Modern Fourth Amendment jurisprudence is derived from Justice Harlan’s concurrence in Katz v. United States.[2] There, he articulated a two part test that would later be adopted by the Court in Smith v. Maryland.[3] The Fourth Amendment is implicated when a person has an actual (subjective) expectation of privacy, and when that expectation is (objectively) reasonable to society.[4]

More recently, the Court has supplemented the Harlan test with a property –focused approach that recognizes the connection between private property and a physical intrusion that would constitute common law trespass. Two recent cases that provide illumination on this issue are Kyllo v. United States[5] and United States v. Jones.[6]

In Kyllo, the Court addressed the role of technologically sophisticated surveillance as it relates to the Fourth Amendment. The police used a thermal imaging device to identify heat emanating from the home of a suspected grow house. Despite the fact that this device was used from a public street, the Court concluded that “[w]here …the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”[7]

The common law trespassory test was revived in Jones. There, the police placed a GPS tracking device on Jones’ vehicle to obtain his vehicle location over the course of 28 days. Writing for the Court, Justice Scalia found that in placing the GPS device, “[t]he Government physically occupied private property for the purpose of obtaining information.”[8] This physical intrusion constituted a “search” and thus implicated the Fourth Amendment.[9]

The dog sniff in Jardines has been compared with Illinois v. Caballes[10], where a dog sniff during a traffic stop was found to not violate the Fourth Amendment. Caballes, in turn, relied on United States v. Place[11] and City of Indianapolis v. Edmond.[12] In Place, the Court found that a dog sniff of luggage did not constitute a search because it did not require opening the luggage or exposing items that would otherwise remain hidden from view.[13] Similarly, in Edmond the Court held that a dog walk around a car was not intrusive enough to be considered a search.[14]

The obvious and common nexus found in Caballes, Place, and Edmonds is that the alleged searches were done away from the home. Although not at all consistent in their application[15], the Court has undoubtedly indicated that the expectation of privacy in vehicles is lessened as compared to the home. Similarly, the privacy of the luggage of a traveler at an airport lessened due to the Government’s interest in protecting air travelers.

The facts in Jardines bring us close to the home, but not quite through the “firm line at the entrance."[16] Rather, here the police conducted the dog sniff from Joelis Jardines’ front porch. Based on the two approaches cited above, two questions arise. First, was the use of the dog sniff consistent with the sense-enhancing technology employed by the police in Kyllo; and second, did the dog sniff constitute a physical trespass upon Jardines’ front porch? Regardless of which approach the Court decides to take, the answer to both questions is most assuredly yes.

Using the Katz approach articulated by Harlan and refined in Kyllo, a trained drug sniff dog is not a device in general public use. But to suggest that these dogs only alert to contraband, and thus could never implicate Fourth Amendment protections (because, presumably, a person has no expectation of privacy in contraband) is a circular argument that did not convince (at least) three justices during oral arguments. Moreover, the sober evidence discussed by a number of Fourth Amendment scholars[17] indicates agreement with Justice Souter’s proclamation in Caballes: “ The infallible dog… is a creature of legal fiction.”[18]

Because the alleged search never crossed the threshold of Joelis Jardines’ home, the common law trespassory test requires us to address the issue of curtilage. The Court articulated a four factor test to define curtilage in United States v. Dunn.[19] However, the front porch of a home generally regarded as exempt from this protection because homeowners impliedly consent for visitors to come to the door to knock. Additionally, the police “knock and talk” tactic is a common procedure that does not appear to have received much recent scrutiny (notwithstanding the Court’s prior holding in Johnson v. United States[20]). But these are limited purposes.

Even presuming the legitimacy of the owner’s implied consent and the validity of the “knock and talk,” there comes a time when the limited purpose ends and reasonableness must prevail. A homeowner’s implied consent to visitors on the front porch only lasts until the homeowner has the opportunity to invite the visitor in, or on the other hand, turn the visitor away. Similarly, the police officer’s presence on the front porch can only said to be legitimate until an otherwise benign purpose disappeared. A police officer stationed on the front porch for several minutes (without knocking, to be clear), with Franky sniffing at the door and a supporting cast of law enforcement officials in the immediate vicinity, cannot said to have been benign.

---

[1] U.S. Const. amend. IV.

[2] 389 U.S. 347, 360 (Harlan, J., concurring).

[3] 442 U.S. 735.

[4] Id., at 740.

[5] 533 U.S. 27.

[6] 132 S. Ct. 945.

[7] Kyllo, 533 U.S. at 32.

[8] Jones, 132 S. Ct. at 949.

[9] Id.

[10] 543 U.S. 405.

[11] 462 U.S. 696.

[12] 531 U.S. 32.

[13] Place, 462 U.S. at 707.

[14] Edmond, 531 U.S. at 40.

[15] See generally New York v. Belton, 453 U.S. 454 (1981); Thornton v. United States, 541 U.S. 615 (2004); and  Arizona v. Gant, 556 U.S. 332 (2009).

[16] Payton v. New York, 455 U.S. 573, 590.

[17] See Brief of Amici Curiae Fourth Amendment Scholars in Support of Respondent, Florida v. Jardines, No. 11-564.

[18] Caballes, 543 U.S. at 411 (Souter, J., dissenting).

[19] 480 U.S. 294, 301.

[20] 333 U.S. 10.

The #SCOTUS dog sniff cases

Yesterday, the Supreme Court heard oral arguments in two cases involving the use of drug-detection dogs.  In the first case (Florida v. Jardines), the question was whether a dog sniff at the front door of a house in which marijuana was suspected of being grown, by a trained narcotics detection dog ("Franky") constitutes a search under the Fourth Amendment. In the second case (Florida v. Harris), the question was whether an alert by a trained drug-detection dog (in this case, "Aldo"), provides sufficient probable cause to search a vehicle.

Dog sniffs have traditionally not been considered "searches," (see United States v. Place, 462 U.S. 696 (1983); City of Indianapolis v. Edmond, 531 U.S. 32 (2000); and Illinois v. Caballes, 543 U.S. 405 (2005)) but those cases dealt with cars or luggage, when the expectation of privacy was less. In Jardines, the dog sniff was at the front door of a home, within the home's curtilage, and where the expectation of privacy was greater. I suspect that the court will rely on the holding of Kyllo v. United States, 533 U.S. 27 (2001), where Justice Scalia (writing for the majority) said that:

We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area," Silverman, 365 U. S., at 512, constitutes a search--at least where (as here) the technology in question is not in general public use.

I think we're also likely to see some discussion of trespass similar to that in United States v. Jones, 565 US ___ (2012). Either way, I think the Court will come down on the side of Joelis Jardines and affirm the Florida Supreme Court's ruling.

In Harris, the case dealt with a dog sniff of a vehicle, but centered more on the qualifications or certifications of the dog itself, and it's record of alerting (accurately, or alternatively, false positives). I feel a little less certain about this one, but I suspect the Court is unlikely to second-guess the training and certification regimen that police departments use to qualify their narcotics detection dogs. As a result, I believe they will reverse the ruling of the Florida Supreme Court.