GUEST POST BY BRIAN TOTH ON USA v. QUARTAVIOUS DAVIS

Brian Toth wrote the following Guest Post on the en banc Davis case:

The Eleventh Circuit Decides United States v. Davis En Banc

In a decision that didn’t much matter for the individual defendant but mattered greatly for how law enforcement goes about its business in today’s technological age, the U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, held today that the government didn’t violate Quartavious Davis’s Fourth Amendment rights by obtaining in accordance with a federal statute historical cell-tower information from the business records of a service provider without a search warrant and without a showing of probable cause. An earlier panel—authored by a judge sitting by designation and joined by Judges Martin and Dubina—concluded otherwise, but nonetheless affirmed Mr. Davis’s convictions because law enforcement had acted in good faith (an exception to the exclusionary rule). The Government sought rehearing en banc of the portion of the panel opinion holding that a Fourth Amendment violation occurred. Expectedly (sorry, David), the Government’s position carried the day.

Mr. Davis, a “prolific cell phone user,” made 86 phone calls a day from his cell phone during the course of a two-month period in which he and several others committed seven armed robberies in South Florida. As permitted by, and in compliance with, the Stored Communications Act, the Government sought and obtained a court order requiring MetroPCS to produce telephone records from that two-month period, which contained certain information about Mr. Davis’s telephone calls and about the cell towers that connected those calls. Before trial, Mr. Davis moved to suppress those records, asserting that their production was a search that required probable cause and a warrant. That motion was denied, and the Government used that information at trial to show that Mr. Davis was physically near the robberies when they occurred.

Writing the majority opinion for the en banc court, Judge Hull relied chiefly on the so-called third-party doctrine, which roughly holds that you have no reasonable expectation of privacy in information that you voluntarily hand over to third parties (and thus no “search” of the information occurs within the meaning of the Fourth Amendment). Comparing Mr. Davis’s case to the facts in a pair of Supreme Court decisions concerning the third-party doctrine, Judge Hull explained that Mr. Davis didn’t have a reasonable expectation of privacy in the cell-tower records:

For starters, like the bank customer in Miller and the phone customer in

Smith, Davis can assert neither ownership nor possession of the third-party’s

business records he sought to suppress. Instead, those cell tower records were

created by MetroPCS, stored on its own premises, and subject to its control. Cell

tower location records do not contain private communications of the subscriber.

This type of non-content evidence, lawfully created by a third-party telephone

company for legitimate business purposes, does not belong to Davis, even if it

concerns him. Like the security camera surveillance images introduced into

evidence at his trial, MetroPCS’s cell tower records were not Davis’s to withhold.

Those surveillance camera images show Davis’s location at the precise location of

the robbery, which is far more than MetroPCS’s cell tower location records show.

More importantly, like the bank customer in Miller and the phone customer in Smith, Davis has no subjective or objective reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wirelessly connected his calls at or near the time of six of the seven robberies.

Judge Hull’s opinion also concluded that even if obtaining the cell-tower records had constituted a search under the Fourth Amendment, the search was nonetheless reasonable:

Davis had at most a diminished expectation of privacy in business records made, kept, and owned by MetroPCS; the production of those records did not entail a serious invasion of any such privacy interest, particularly in light of the privacy-protecting provisions of the SCA; the disclosure of such records pursuant to a court order authorized by Congress served substantial governmental interests; and, given the strong presumption of constitutionality applicable here, any residual doubts concerning the reasonableness of any arguable “search” should be resolved in favor of the government. Hence, the § 2703(d) order permitting government access to MetroPCS’s records comports with applicable Fourth Amendment principles and is not constitutionally unreasonable.

There were other opinions.

Concurring in full, Judge William Pryor wrote “to explain that a court order compelling a telephone company to disclose cell tower location information would not violate a cell phone user’s rights under the Fourth Amendment even in the absence of the protections afforded by the Stored Communications Act.”

Concurring in the judgment, Judge Jordan, joined by Judge Wilson, expressed “concerns about the government being able to conduct 24/7 electronic tracking (live or historical) in the years to come without an appropriate judicial order.” Judge Jordan would’ve ruled on narrower grounds—assuming that Mr. Davis had a reasonable expectation of privacy but holding “that the government satisfied the Fourth Amendment’s reasonableness requirement by using the procedures set forth in 18 U.S.C. § 2703(d) to obtain a court order for Mr. Davis’ cell site records.”

Judge Rosenbaum, concurring in the majority opinion, wrote separately because she thought “that the third-party doctrine, as it relates to modern technology, warrants additional consideration and discussion.”

And Judge Martin, joined by Judge Jill Pryor—the newest member of the Court—dissented:

In this case, the government got 67 days of cell site location data disclosing

Quartavious Davis’s location every time he made or received a call on his cell

phone. It got all this without obtaining a warrant. During that time, Mr. Davis

made or received 5,803 phone calls, so the prosecution had 11,606 data points

about Mr. Davis’s location. We are asked to decide whether the government’s

actions violated Mr. Davis’s Fourth Amendment rights. The majority says our

analysis is dictated by the third-party doctrine, a rule the Supreme Court developed almost forty years ago in the context of bank records and telephone numbers. But such an expansive application of the third-party doctrine would allow the government warrantless access not only to where we are at any given time, but also to whom we send e-mails, our search-engine histories, our online dating and shopping records, and by logical extension, our entire online personas.

Decades ago, the Supreme Court observed that “[i]f times have changed, reducing everyman’s scope to do as he pleases in an urban and industrial world, . . . the values served by the Fourth Amendment [are] more, not less, important.” Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S. Ct. 2022, 2032 (1971). This is even truer today. The judiciary must not allow the ubiquity of technology—which threatens to cause greater and greater intrusions into our private lives—to erode our constitutional protections. With that in mind, and given the striking scope of the search in this case, I would hold that the Fourth Amendment requires the government to get a warrant before accessing 67 days of the near-constant cell site location data transmitted from Mr. Davis’s phone. I respectfully dissent.

All told, the five opinions making up this decision span 102 pages. Fortunately, footnote 21 of the majority opinion summarizes the result.

 

May the 4th be with you

Nerd out!

Okay, now that that's out of the way, check out this front page article from the Washington Post about the aging prison population:

Harsh sentencing policies, including mandatory minimums, continue to have lasting consequences for inmates and the nation’s prison system. Today, prisoners 50 and older represent the fastest-growing population in crowded federal correctional facilities, their ranks having swelled by 25 percent to nearly 31,000 from 2009 to 2013.

Some prisons have needed to set up geriatric wards, while others have effectively been turned into convalescent homes.

The aging of the prison population is driving health-care costs being borne by American taxpayers. The Bureau of Prisons saw health-care expenses for inmates increase 55 percent from 2006 to 2013, when it spent more than $1 billion. That figure is nearly equal to the entire budget of the U.S. Marshals Service or the Bureau of Alcohol, Tobacco, Firearms and Explosives, according to the Justice Department’s inspector general, who is conducting a review of the impact of the aging inmate population on prison activities, housing and costs.

“Our federal prisons are starting to resemble nursing homes surrounded with razor wire,” said Julie Stewart, president and founder of Families Against Mandatory Minimums. “It makes no sense fiscally, or from the perspective of human compassion, to incarcerate men and women who pose no threat to public safety and have long since paid for their crime. We need to repeal the absurd mandatory minimum sentences that keep them there.”

The Obama administration is trying to overhaul the criminal justice system by allowing prisoners who meet certain criteria to be released early through clemency and urging prosecutors to reserve the most severe drug charges for serious, high-level offenders.

At the same time, the U.S. Sentencing Commission, an independent agency, has made tens of thousands of incarcerated drug offenders eligible for reduced sentences.

But until more elderly prisoners are discharged — either through compassionate release programs or the clemency initiative started by then-attorney general Eric H. Holder Jr. last year — the government will be forced to spend more to serve the population. Among other expenditures, that means hiring additional nurses and redesigning prisons — installing showers that can be used by the elderly, for instance, or ensuring that entryways are wheelchair-accessible.

 I'm hopeful that judges will take note and start ordering alternative sentences -- especially for first-time non-violent offenders -- that will help society instead of just warehousing people.  May the force be with you!

Law Day is May 1

Together with the Federal Bar Association, the Southern District of Florida is hosting Law Day Programs in U.S. Courthouses to educate area high school students. Law Day is an annual celebration of our liberties, a reaffirmation of our loyalty to our country and a rededication to the ideals of equality and justice. The designation of May 1st as “Law Day” is codified in 36 U.S.C. § 113. Click here for more information about the national program.

The American Bar Association’s Law Day theme this year is “Magna Carta: Symbol of Freedom Under Law,” celebrating the 800th anniversary of a document that is an international symbol of the rule of law and an inspiration for many basic rights, including due process, habeas corpus, trial by jury, and the right to travel. The Law Day programs include: a mock trial exploring fourth amendment issues, an animated discussion of the Magna Carta, a dialogue on the tensions between our security and our freedom, and observation of court in session. As part of the local theme of “Diversity and Inclusion in the Law”, a panel of members of the judiciary and the legal community will share personal experiences and obstacles each faced and overcame in order to achieve success in the legal field.

The events will take place on Friday, May 1, 2015 from 8:30 a.m. – 1:30 p.m. at the King building and the Broward courthouse.

For more information or to R.S.V.P. to attend the event, please contact
Jarred Reiling at Jarred_Reiling@flsd.uscourts.gov or
Clay Roberts at Clay_Roberts@flsb.uscourts.gov.

"In the early 1970s, four Florida Supreme Court justices resigned from office following corruption scandals."

That was the U.S. Supreme Court today in decising Williams-Yulee v. The Florida Bar.  From the intro:

Our Founders vested authority to appoint federal judges in the President, with the advice and consent of the Senate, and entrusted those judges to hold their offices during good behavior. The Constitution permits States to make a different choice, and most of them have done so. In 39 States, voters elect trial or appellate judges at the polls. In an effort to preserve public confidence in the integrity of their judiciaries, many of those States prohibit judges and judicial candidates from personally soliciting funds for their campaigns. We must decide whether the First Amendment permits such restrictions on speech.
We hold that it does. Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. We affirm the judgment of the Florida Supreme Court.

 I'm against judicial elections, but if you are gonna have em, then I think you gotta back the First Amendment and a person's right to ask for campaign contributions even if they are running for judge.  I find myself agreeing with Scalia again:

An ethics canon adopted by the Florida Supreme Court bans a candidate in a judicial election from asking anyone, under any circumstances, for a contribution to his campaign. Faithful application of our precedents would have made short work of this wildly disproportionate restriction upon speech. Intent upon upholding the Canon, however,the Court flattens one settled First Amendment principle after another.
The first axiom of the First Amendment is this: As a general rule, the state has no power to ban speech on the basis of its content. One need not equate judges with politicians to see that this principle does not grow weaker merely because the censored speech is a judicial candidate’s request for a campaign contribution. Our cases hold that speech enjoys the full protection of the First Amendment unless a widespread and longstanding tradition ratifies its regulation.

The big argument today

The Washington Post has interesting clips on the gay marriage argument to listen to here, including the protestor:

Protester briefly disrupts court 
10:29 a.m.:  Before U.S. Solicitor General Donald B. Verrilli Jr. could speak to the justices, a protester inside the chamber stood up and began shouting.
“Homosexuality is an abomination!” the man shouted from the center of the chamber.
He continued yelling about an “abomination to God” as he was quickly taken outside by security, but his shouting could be heard echoing through the building for several minutes.
The interlude was “kind of refreshing,” Scalia remarked. The room chuckled as Verrilli began to make his remarks.
As Verrilli began to discuss Lawrence v. Kansas, giving way to a discussion about the fundamental nature of marriage, the muffled cries of “abomination” could still be heard in the courtroom.

"This embarrassment is something I'll take to my grave."

That was 57-year old Dr. Krishna Tripuraneni before being sentenced by Judge Gayles to 2 years for tax evasion of about $18 million. The government had asked for 3 years and the defense asked for non-incarceration. From the Sun-Sentinel:

The doctor, who built a flourishing medical practice in Wellington, had asked the judge to consider his long history of donating his medical services to needy people and giving generously to deserving causes.

U.S. District Judge Darrin Gayles said he balanced the doctor's significant illegal conduct and his long history of charitable work in deciding the appropriate punishment.

"The thing that stood out to me ... there was this duality — this very serious crime and there are also good works," the judge said.

The judge said he had difficulty discerning the doctor's motive, noting that unlike many defendants, he had no great financial need or a drug problem.

"Perhaps it was the need for more homes, or bigger homes, or more cars ... I don't understand it," Gayles said.

Tripuraneni admitted that he lied about his business expenses and used money from his medical businesses to build an oceanfront mansion in Manalapan. He also used the money to pay for interior design work at other homes he owned, to make pay payments for condos he purchased, and to pay tuition for his son and daughter. Prosecutors said he illegally classified his personal expenses as building repairs and other business-related expenses.

The mansion, which the family named Nirvana, was put on the market earlier this year with an asking price of $25 million. Forbes magazine reported the luxurious 12,244-square-foot home sits on an acre-and-a-half of land between the Atlantic Ocean and Lake Worth Inlet. The agent handling the listing told the magazine the property features a Zen garden and said the family flew in Buddhist monks to bless the home.

Tripuraneni, in a dark grey suit, told the judge he was sincerely sorry for what he did and took full responsibility for his offenses, which spanned five years.

"This embarrassment is something I'll take to my grave," he said.

He said he was too ashamed to face his parents, who are in their 80s and live in India. And he said he dreaded the thought of his future grandchildren learning what he did.

"There will be an asterisk next to my name and it's hard to live with that shame," he said.

Time for a new A.G.

Eric Holder has stepped down and now we have Loretta Lynch. Part of his speech from CNN:

As in his speech when he took office six years ago, Holder laid claim to helping restore the Justice Department's reputation, a tacit shot at the Bush administration and the political scandal that hung over former Attorney General Alberto Gonzales after the firings of U.S. attorneys.

Holder said he was proud of the department's work, which he said was done "free of politicization." He told the Justice staffers they were responsible for a new "golden age" at the Justice Department.

He cited the department's role in the Obama administration's decision to stop defending the Defense of Marriage Act, which has quickened the acceptance of same-sex marriage. He called same-sex marriage the "civil rights issue of our time." He also lauded the department's active role in civil rights enforcement, which has become a major focus in light of a national spate of police shootings and excessive use-of-force incidents.

While Holder listed his accomplishments, much of the ceremony also served as a reminder of the rocky relationship he has had with Republicans, who made him the first sitting cabinet member to be held in contempt of Congress and who regularly used him as the stand-in to take shots at President Obama in political fights.

In other news, gay marriage is before the High Court and Justices Scalia and Kennedy are gonna be fighting on this one. From the Washington Post:

Kennedy is often the deciding vote when the ideologically divided court splits 5 to 4, but in two-thirds of those cases he sides with the conservatives.

But if they often arrive at the same conclusion — one obstacle for same-sex marriage proponents in the current case is Kennedy’s allegiance to states’ rights — Kennedy and Scalia could not be more different in how they view a judge’s role.

Their different approach to gay rights reflects their more fundamental disagreement about how to think about the liberties protected by the Constitution,” said Paul M. Smith, a Washington lawyer who was on the winning side in the Lawrence case.

Scalia believes the only freedoms that should be viewed as protected by the Constitution “are those that have been protected under American law throughout our history, defined at the most specific level,” Smith said. Otherwise, the people decide.

Kennedy, Smith said, “believes that each generation has the right to conceive of newer and broader forms of liberty that merit constitutional protection. He sees history as a guide but not a straitjacket.”

Their battle is compelling, said Allison Orr Larsen, a William and Mary law professor, because it “brings to the forefront the theoretical question in constitutional law: How should courts respond to change when interpreting the Constitution?”

Michael Dorf, a professor at Cornell Law School and a former Kennedy clerk, said his former boss’s decisions on gay rights were not constructed to lead ultimately to a decision on same-sex marriage. But they provided a foundation for how to view new constitutional rights “if that’s where the country moves.”

Scalia, on the other hand, champions the cause of originalism, and Edward Whelan, a former Scalia clerk and president of the Ethics and Public Policy Center, said his former boss learned quickly that “Kennedy’s judicial approach was not anything close to what Scalia’s is.”

“A basic tenet of originalism is that it’s not the role of judges to impose their own moral philosophies,” Whelan said. “Scalia understands the Constitution to leave the vast bulk of policy issues to the democratic processes and rejects the notion that it’s his role to read his own views into the Constitution.”

And here's your Monday moment of zen:

It's been a bad week for law enforcement and dogs

First was the well-covered story of the Supreme Court ruling that traffic stops couldn't be extended, even briefly, to allow for drug-sniffing dogs to take a whiff around the car (yes, Rumpole, that was Scalia in the majority).

And next is this awful story about the FBI lying in courtrooms around the country about hair samples. In this particular case, the FBI convicted a man using hair analysis when the hair at issue was a dog's hair!

In one particularly shocking case from 1978, two FBI-trained hair analysts who helped in the prosecution of a murder case couldn’t even tell the difference between human hair and dog hair.

The case involved a murder in Washington D.C. that year. The victim, a cab driver, was robbed and killed in front of his home. Before long, police centered upon Santae Tribble, then a 17-year-old local from the neighborhood, as a suspect.

Tribble maintained his innocence. But no matter what he said and how much his friends vouched, two FBI forensics experts claimed that a single strand of hair recovered near the scene of the crime matched Tribble’s DNA. Thanks to that evidence, which was groundbreaking at the time, Tribble was found guilty and sentenced to 20 years to life in prison after 40 minutes of jury deliberation, reported the Washington Post.

He would go on to serve 28 years until the truth came out: an independent analysis found that the FBI testimony was flawed. Not a single hair that was found on the scene matched his DNA. After attorneys brought the evidence to the courts, Tribble was exonerated of the crime, though he’d already been released from prison. “The Court finds by clear and convincing evidence that he did not commit the crimes he was convicted of at trial,” a judge wrote in the certificate of innocence released at the time, in 2012.

It gets worse. Not only did none of the hairs presented as evidence in trial belonged to Tribble, the private lab found that one of the hairs actually came from a dog.

“Such is the true state of hair microscopy,” Sandra K. Levick, Tribble’s lawyer, wrote at the time, in 2012. “Two FBI-trained analysts… could not even distinguish human hairs from canine hairs.”

Tribble’s case in not unique. In a Washington Post story released over the weekend, officials from the FBI and the Justice Department acknowledged the extent of their flawed use of hair forensics prosecutions prior to 2000.

The numbers are staggering. Over 95 percent of the cases involving hair evidence that the FBI has reviewed so far contained flawed testimony—257 out of 268 cases.

Ho hum. No one seems to care.