Criminal Procedure: Adjudication 250 words and two scholarly sources

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D a n i e l e . H a l l , J . D . , e d . D .

Criminal law

P r o C e d u r e a n d

Australia • Brazil • Mexico • Singapore • United Kingdom • United States

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444 Part ii Criminal Procedure

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Exhibit 12–4 SUMMARY OF FOURTH AMENDMENT ISSUES AND AUTOMOBILES

SuBJecT cASe

Stops and Arrests

stops may not be arbitrary. Delaware v. Prouse (1979)

stops may occur without suspicion if systematic. Michigan v. Sitz (1990)

the motives of police are not relevant when determining if a stop is lawful.

Whren v. United States (1996)

the issue is whether there is probable cause to believe a traffic violation has occurred.

states may delegate the discretion to arrest for misdemeanors, including traffic violations, to police.

Atwater v. City of Lago Vista (2001)

systematic stops to intercept illegal drugs violate Fourth amendment.

Indianapolis v. Edmond (2000)

occupants

Drivers and passengers are seized when pulled over, and therefore they may challenge the stop and search.

Brendlin v. California (2007)

Drivers of lawfully stopped auto mobiles may be ordered out without specific cause.

Pennsylvania v. Mimms (1977)

occupants of lawfully stopped auto mobiles may be ordered out without specific cause.

Maryland v. Wilson (1997)

occupants of automobiles may not be searched as incident to lawful search of automobiles— probable cause to believe sought item will be found on person required.

United States v. DiRe, 332 U.S. 581 (1948)

Drivers and occupants may be frisked if officer has reasonable belief of dangerousness

Arizona v. Johnson (2009)

Searches

Warrantless search of automobile valid if probable cause exists to believe item sought will be found in automobile. no exigency required if probable cause exists.

Carroll v. United States (1925)

Maryland v. Dyson (1999)

Warrantless searches of closed container in automobile valid if probable cause exists to believe item sought will be found in container.

entry into lawfully stopped vehicle to read the Vin legitimate.

California v. Acevedo (1991)

New York v. Class (1986)

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Chapter 12: Searches, Seizures, and Arrests 445

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Warrantless search of personal item in automobile (e.g., purse) valid if there is probable cause to search for an item that may be concealed there.

Wyoming v. Houghton (1999)

Warrantless search of automobile invalid if probable cause exists to search container in automobile only.

California v. Acevedo (1991)

Warrantless search of recent occupant arrestee’s automobile that is within his or her control is valid.

Thornton v. United States (2004)

Warrantless search of automobile of suspect arrested in an officer’s cruiser invalid because car was outside of his control; warrantless search of car valid if reasonable belief evidence that is subject of arrest will be found within.

Arizona v. Gant (2009)

Warrantless search of automobile by officer who issued ticket but chose not to arrest driver is violative of the Fourth amendment.

Knowles v. Iowa (1998)

inventory searches of automobiles including containers—are valid if systematic.

Colorado v. Bertine, 479 u.s. 367 (1987)

properly framed profile may be used to stop an automobile, but searches and arrests require more.

United States v. Brignoni-Ponce (1975)

automobile may be seized without a warrant if probable cause exists to belifeve it is contraband.

Florida v. White (1999)

Exhibit 12–4 (continued)

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charged with minor misdemeanors violated due process and the Fourth Amendment. The Court rejected Florence’s claim in a decision exhibiting substantial deference to corrections authorities:

Maintaining safety and order at (detention) institutions requires the expertise of cor- rectional officials, who must have substantial discretion to devise reasonable solutions to the problems they face” . . . (T)he seriousness of an offense is a poor predictor of who has contraband.”

Although a small number of pretrial detainees are housed in prisons, most inmates of these facilities are convictees. The Fourth Amendment is not fully applicable in prisons, for three reasons. First, security concerns outweigh privacy concerns. Second, loss of privacy is considered by our society to be an attribute of confinement

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Chapter 12: Searches, Seizures, and Arrests 461

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Is there governmental action?

Yes

Fourth Amendment inapplicable

Is there a search or seizure intruding upon a reasonable

expectation of privacy?

Does the Fourth Amendment impose probable cause

and/or warrant requirements?

Were the probable cause/warrant

requirements satisfied?

Fourth Amendment

violated

Fourth Amendment

violated

No Fourth Amendment inapplicable

Yes

No No

Yes

Was the action reasonable?

Yes

Fourth Amendment satisfied

Yes

Exhibit 12–6 FOURTH AMENDMENT ANALYSIS

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462 Part ii Criminal Procedure

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Exhibit 12–7 SUMMARY OF WARRANT RULES AND EXCEPTIONS

SeArcheS

RULE: Pursuant to the Fourth and Fourteenth Amendments, in both federal and state cases, a warrant to search must be obtained, unless one of the following exceptions is established.

EXCEPTIONS and LIMITATIONS:

1. Consent

2. Terry frisks

3. Plain view

4. Plain feel

5. Incident to arrest

6. Preservation of evidence

7. Emergencies and hot pursuit

8. Borders

9. Motor vehicles

10. Vehicle inventories

11. Prisoners, probationers, and parolees

12. Protective sweeps

13. Open fields

14. Administrative inspections

ArreSTS

RULE: The Fourth and Fourteenth Amendments govern arrests by both federal and state officials. Arrests in public areas may be warrantless. Arrests made in the home or other property of the defendant must be supported by either an arrest warrant or a search warrant for the defendant’s person. Arrests in the homes or other property of third parties must be supported by a search warrant authorizing the search for the defendant at the particular property.

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POlICE ETHICS

Law enforcement officers are bound by departmental rules and local, state, and federal laws. The Constitution itself plays a role in defining police ethics. For example, the exclusionary rule is both an evidentiary rule and an ethical directive.

Ethical Considerations

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Chapter 12: Searches, Seizures, and Arrests 463

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in addition to the above laws, the international Association of Chiefs of Police has promulgated a model policy of ethical standards. Although not binding, these standards are widely recognized by police agencies as good guidance.

The model policy provides, inter alia, that officers:

• shall obey the law.

• shall not behave in unbecoming ways.

• shall respect other officers, be truthful, cooperate with internal

investigations, and not interfere with investigations.

• shall report any convictions to their superior.

• shall not harass, intimidate, or demean others.

• shall adhere to use-of-force policies and respect civil rights.

• shall not be under the influence of alcohol or drugs while on duty or in a

public place at any time.

• shall not accept gifts or gratuities or otherwise financially benefit from their

position, except to receive compensation.

• shall not use their official powers to resolve personal disputes.

• shall not commence a personal relationship with the target of an

investigation and other specific individuals.

• shall follow state law concerning political activities. Where silent, officers

shall not engage in political activities, including campaigning, soliciting

support, or posting notices, while on duty or in uniform.

Ethical Considerations (c o nt i nu e d)

Web links news The home page at http://www.newspapers.com provides links to many news- papers in the United States and abroad.

consent exigent circumstances

plain view doctrine probable cause

Key Terms

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Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices 485

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provide at least as much protection as the United States Supreme Court has provided in its interpretation of the federal Bill of Rights, state courts are unrestricted in according greater civil liberties and protections to individuals and groups”. . . . In general, when provisions of the Ohio Constitution and U.S. Constitution are essentially identical, we should harmonize our interpretations of the provisions, unless there are persuasive reasons to do otherwise. . . . To hold that the physical evidence seized as a result of unwarned statements is inadmissible, we would have to hold that section 10, Article I of the Ohio Constitution provides greater protection to criminal defendants than the Fifth Amendment to the U.S. Constitution. We so find here.

Only evidence obtained as the direct result of statements made in custody with- out the benefit of a Miranda warning should be excluded. We believe that to hold otherwise would encourage law-enforcement officers to withhold Miranda warn- ings and would thus weaken section 10, Article I of the Ohio Constitution. In cases like this one, where possession is the basis for the crime and physical evidence is the keystone of the case, warning suspects of their rights can hinder the gathering of evi- dence. When physical evidence is central to a conviction and testimonial evidence is not, there can arise a virtual incentive to flout Miranda. We believe that the overall administration of justice in Ohio requires a law-enforcement environment in which evidence is gathered in conjunction with Miranda, not in defiance of it. We thus join the other states that have already determined after Patane that their state constitutions’ protections against self-incrimination extend to physical evidence seized as a result of pre-Miranda statements.

Sixth Amendment Miranda has effect as soon as a person is in custody and is subject to interrogation. This can occur long before or directly before the filing of a formal charge. Once the adversary judicial proceeding has begun, the primary source of protection changes from the Fifth Amendment (Miranda), which continues in effect though, to the Sixth Amendment.

The reading of the Miranda warnings is sufficient for protecting a defendant’s Sixth Amendment rights, so police, courts, or prosecutors are not required to inform a defendant of the independent Sixth Amendment right, although it is often done. In practice, the Sixth Amendment and Fifth Amendment rights are nearly identical, although small differences in their application exist.24

eleCtronIC surveIllanCe A perennial challenge for law enforcement in a free republic is to stay current with, if not ahead of, the changes in the way people steal from and hurt one another. Generally, law enforcement is more reactive in a free society. In the past, this meant that a new prob- lem would arise, often involving loss or injury to a few people. Law enforcement would react to the new threat and often, because the threat of harm was proven, public sup- port for law enforcement intervention had developed. Of course, the precise contours

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486 Part II Criminal Procedure

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of the solution would be debated but over time, a law enforcement method would develop. However, the landscape is different today. The rapidly evolving technology of the current age poses a new problem for law enforcement. Today, using new, personally developed technology, an individual can quickly cause greater harm than ever before. Even more, if the old reactive model is applied, the precise technology used to commit the crime can be changed by the time the problem is identified and law enforcement begins to develop a solution. In regards to terrorism, the old reactive model may not be adequate. Some scholars and law enforcement officials argue that a new model needs to be developed—a model that focuses more on prevention and less on detection and prosecution. As you will see, however, the new model that is advocated by many reflects a shift in the due process/crime control continuum in the direction of crime control.

An example of this shift is in the use of electronic surveillance. Many forms of electronic surveillance are used by law enforcement agencies. Wiretaps and highly sen- sitive microphones are examples. When the Supreme Court first addressed the issue of wiretapping, it concluded that there was no Fourth Amendment protection because there was no trespass into a constitutionally protected physical area. This changed when the Court issued the Katz decision, which advanced the idea that the Fourth Amendment protects people, not places. Now, if a person has a justifiable expectation of privacy, the Fourth Amendment applies.

Despite the constitutional aspect of using such devices, this area of law is highly regulated by federal statutory law. Due to a complex statutory scheme and because the technology is changing so rapidly, this area of law is murky, to say the least. What appears here is a basic overview of the law of electronic surveillance. The landmark statute in this area of the law is Title III of the Omnibus Crime Control Act and Safe Streets Act of 1968. See Exhibits 13–2 and 13–3.

Governing Statutes Title III of the Omnibus Crime Control Act and Safe Streets Act of 196825 is a federal statute that regulates the use of electronic surveillance. It is also known as Title III and the Federal Wiretap Act. The Wiretap Act has been amended on several occasions. Four significant amendments resulted from the Electronic Communications Privacy Act of 1986, which included what is known at the Stored Communications Act, and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot Act) and the Federal Intel- ligence Surveillance Act of 1978 (FISA) and the FISA Amendments Act of 2008. These laws permit the states to enact similar legislation. State laws may not lessen, although they may increase, the requirements for obtaining a warrant and they must mimic the federal laws in other ways. Today, most states have such legislation. Federal law requires state officials to report their wiretap and other electronic surveillance to the federal government for purposes of monitoring and the prevention of abuse. Exhibit 13–2 summarizes the requirements to conduct electronic surveillance.

The Wiretap Act prohibits wiretapping, bugging, or other electronic surveillance of a conversation when the parties to that conversation possess a reasonable expectation of privacy. Violation of the act may result in civil and criminal penalties. Evidence obtained

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Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices 487

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exhibit 13–2 SUMMARy OF REqUIREMENTS TO CONDUCT ELECTRONIC SURVEILLANCE

form of surveillance

requirements for governmental surveillance

remedies for violations

Wiretap Super-warrant Criminal and civil. Except for e-mail, illegally obtained evidence is excluded at trial. Service providers are exempt when acting in course of employment.

Tracking device Warrant supported by probable cause

Traditional liability

Stored communication

180 days or less: Warrant supported by probable cause. 181 days or more: Notice to subscriber, ad- ministrative subpoena, and specific and articulable facts with reasonable grounds to believe data sought will be relevant and material to ongoing investigation.

Criminal (lesser penalties than for Wiretap Act) and civil. Service providers absolutely immune for violations. No suppres- sion of illegally obtained evidence in criminal proceedings.

Pen register/ Trap and trace

Government certifies relevance to investigation. Court to issue order without independent judgement of relevance.

No civil or criminal remedies. No suppression of illegally obtained evidence.

in violation of the act is excluded at trial. The suppression provision does not, however, apply to e-mail.

The statute permits states to enact their own electronic surveillance laws; however, those laws cannot provide less protection of individual rights than the federal statute. A state may, however, provide greater protection of individual rights through its sur- veillance law than does the federal statute. The USA Patriot Act amended existing surveillance statutes.

When the Fourth Amendment and these statutes are viewed as a whole, electronic and wire surveillance can be divided into four categories, each with a different level of privacy protection. They are

1. Wiretaps 2. Tracking devices 3. Stored communications and subscriber information 4. Pen registers and trap devices

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488 Part II Criminal Procedure

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exhibit 13–3 EXAMPLES OF PATRIOT ACT CHANGES OF WIRE AND ELECTRONIC SURVEILLANCE

Pre–Patriot act Post–Patriot act

Warrants to intercept telephone conversation were limited to specific crimes.

List expanded to include terrorism, chemical weapons, and computer crimes.

It was unclear whether a warrant or the lesser subpoena was required to retrieve voice mail.

Administrative subpoena but not warrant required.

Pen registers and trap devices

Similar technology may be applied to e-mail; court orders have national, not district, authority.

Warrants had to specify the communications carrier.

Roving wiretaps that do not specify a carrier are permitted. The order follows the target, who may use multiple ISPs, cable companies, and cell phone carriers.

Foreign intelligence gathering was allowed, but limited.

Governmental authority to gather foreign intelligence was broadened.

Federal law protects the privacy of educational and library records.

Authority of government to obtain educational and library records that are sought in terrorism or foreign intelligence investigation is broadened. Co

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Wiretaps Law enforcement officers may not intercept telephone conversations or the content of other electronic messages (e.g., e-mail) without first obtaining court approval.26 The Wiretap Act requires more than the Fourth Amendment for this form of surveil- lance. This stance reflects the belief held by Congress that telephone conversations fall within a special zone of privacy. The high standards for issuing a wiretap war- rant have led to it being dubbed a “super-warrant.” The Act limits court approval only for certain crimes. Espionage, treason, murder, kidnapping, robbery, extortion, drug crimes, and bribery of public officials are included in that list. The Patriot Act expanded the list to include chemical weapons offenses, using weapons of mass destruction, financing terrorism that transcends U.S. borders, conducting financial transactions with nations that support terrorism, and material support of terrorist organizations. In recent years, most of the wiretaps issued have been requested by state officials for drug crimes.

To obtain a wiretap order, a high-level official in the U.S. Department of Justice must either apply or authorize an application for an order. Additionally, Title III em- powers states to designate high-level prosecutors who may apply for a wiretap order. Such designations must appear in statute. Most states have designated their elected

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Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices 489

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prosecutors and state attorneys general. The application, which shall be supported by oath or affirmation, must contain the following27:

1. The identity of the official applying for the order and the official authorizing the application.

2. Evidence establishing probable cause to believe that the person whose communication is to be intercepted has committed, is committing, or is about to commit one of the named crimes.

3. Evidence establishing probable cause to believe that the communication to be intercepted concerns the crime.

4. A statement that other normal investigative procedures have been tried and failed, or that no other procedure is available.

5. The time period during which the interception will occur. 6. A full description of the location where the interception will take place. 7. A statement reflecting all prior attempts to obtain a similar order for any of the

same places or persons.

Wiretap applications may be made to federal judges, or if authorized by state statute, to state criminal courts. If the judge grants the application, the order must specify the person whose communication is to be intercepted, the location of the interception, the nature of the communication to be intercepted, the crime involved, and the duration of the interception. Because of the ongoing nature of such investigations, wiretap orders are sealed. In all cases, the surveillance is to cease once the desired information has been seized (recorded). After the interception has ended, the recording is to be given to the judge who issued the order, for safekeeping. See the sidebar for data on the number of wiretap orders issued between 1999 and 2001.

execution of Wiretap Warrants The statute provides that all communications intercepted shall, if possible, be recorded. The method of recording is to protect against editing and other alterations. The purpose of this requirement is obvious: to preserve the integrity of the evidence.

The statute also requires that all interceptions of irrelevant information be minimized. Said another way, if an officer intercepting a conversation knows that it is unrelated to the investigation, the interception is to cease. The minimization requirement is no more than a codification of the Fourth Amendment’s reasonableness requirement.

Of course, determining whether an interception is related to the offense under investigation is not always easy, and courts tend to defer to the judgement of the inter- cepting officer in close cases. The following factors are considered by a reviewing court when a claim is made that interceptions were not properly minimized:

1. The percentage of calls that were related to the investigation. The lower the percentage, the greater the likelihood that the government did not properly minimize its interceptions.

2. The number of calls that were one-time only.

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490 Part II Criminal Procedure

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number of WIretaP orders, 1999 to 2011

There were 2,732 wiretap authorizations in 2011. Most were issued at the state level for portable devices (cell, pages, etc.), and 85% were for drug crimes. The average length of original wiretap authorizations was 28 days with extensions raising the average to 42 days, data were collected on an average of 113 people per order, and 23% of the intercepted communications were incriminating. Twelve of the intercepted messages were encrypted. All were decoded. Inter- cepts are costly, averaging nearly $50,000 each. But many wiretaps resulted in criminal forfeitures valued in the millions of dollars; 3,547 people who had communications intercepted were arrested, 465 were convicted, and many cases were pending when the data were reported.

1999

2,000

1,500

1,000

500

0 2000 2001 2002 2003 2004

Calendar Year

Federal State

2005 2006 2007 2008 2009 2010 2011

3. The length of the calls intercepted. The shorter the calls, the less opportunity the government had to determine whether the interception was proper.

4. The nature of the calls. The more ambiguous the call, the greater the government’s interest in prolonging its interception.28

Other factors may also be important to the inquiry. For example, if a known co- conspirator makes frequent calls, interception of all the calls is probably valid, even though the majority of conversations do not concern the conspiracy. Each case must be examined on its own facts to determine whether Title III or the Fourth Amendment has been violated.

Implicit in court orders under this statute is the authority to enter premises to install listening devices. Courts have held that it would be nonsensical to give an officer the authority to conduct surveillance, but not to enter the premises of the defendant to install the necessary device. The court order does not have to specifically give this authority; it is implicit in the order itself. Of course, where an officer may go depends on the facts of each case.

Source: 2011 Report of the Director of the Administrative Office of the United States Courts on Applications for Orders Authorizing or Approving Interceptions of Wire, Oral, or Electronic Communications.

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Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices 491

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The statute authorizes judges to order third parties, such as telephone company personnel, to assist law enforcement officers in executing an electronic surveillance order. Third parties must be compensated for their assistance.

Within 90 days after the expiration of the order, the target of a wiretap order, who is not always the criminal suspect, must be sent notice and an inventory of what was tapped. Judges have the discretion to order that notices also be sent to third parties whose communications were intercepted. Some states, such as California, require that the order itself also be provided. In cases where an ongoing investigation would be jeopardized by the notice, the government may apply to the issuing court for an exten- sion of time to send it.

exceptions to the Wiretap Act In a number of situations, a court order is not required to intercept an electronic com- munication. Several exceptions are discussed here.

First, be aware that the act tracks the privacy aspect of the Katz decision; that is, only communications for which a person has a reasonable expectation of privacy are protected. Because Title III does not expand the privacy protection aspect of the Fourth Amendment, decisions concerning whether a person has a reasonable expectation of privacy under the Fourth Amendment are applicable to Title III.

Second, any employee of a communications company who intercepts an in- criminating communication while engaged in the normal course of employment (i.e., maintenance) may disclose such information to the authorities, and it may be used at trial.

Third, officers need not obtain a court order when engaged in certain national security investigations.

Fourth, in emergency situations, when an officer does not have time to obtain a court order, the interception may begin immediately, but an application must be made within 48 hours. If the judge determines that there was no emergency justifying a warrantless tap, then any evidence obtained must be suppressed. However, the statute excludes unlawfully obtained e-mail from the suppression rule.

Finally, parties to conversations or e-mail exchanges may consent to surveillance. So, law enforcement officers and individuals working with law enforcement can record or allow others to listen or read their communications without the consent of the other party.

Tracking Devices It is possible today to use electronic and mechanical devices to track and record the movement of people and things. Law enforcement authority to place a tracking device is lower than for wiretaps, but higher than for stored communication and pen registers. Warrants for tracking devices may be issued upon the standard Fourth Amendment finding of probable cause.

An interesting question concerns the relevant standard to apply when the govern- ment wants to use cell phone data to track the whereabouts of its possessor. That is the issue addressed in the following opinion.

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492 Part II Criminal Procedure

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As part of an ongoing criminal investigation, the government seeks a court order compelling a cell phone company to disclose records of a customer’s cell phone use. Among the records sought is “cell site data,” which reveals the user’s physical location while the phone is turned on. By order dated Sep- tember 2, 2005, the court granted the application in large part, authorizing the continued used of a pen register/trap and trace device and disclosure of certain customer records including historical cell site data. However, the order denied access to pro- spective cell site information, for reasons explained more fully in this opinion.

The underlying order and application have been sealed at the government’s request, in order not to jeopardize the ongoing criminal investiga- tion. This opinion will not be sealed, because it concerns a matter of statutory interpretation which does not hinge on the particulars of the underlying investigation. The issue explored here has serious implications for the balance between privacy and law enforcement, and is a matter of first impression in this circuit as well as most others. Following its standard practice in this district, the government has combined its request for subscriber records with an application to install a pen register and trap/ trace device on the target phone. Basically, a pen register is a device or process which records the telephone numbers of outgoing calls; the trap and trace device captures the telephone numbers of in- coming calls. Among the most commonly used law enforcement techniques (footnote omitted), a pen/ trap order authorizes real-time electronic monitor- ing of a telephone user’s calls (excluding content) for a limited duration, typically 60 days.

To assist this monitoring effort, the government seeks access to subscriber records maintained by the phone company pursuant to 18 U.S.C. § 2703(c).

Among the records sought is “the location of cell site/sector (physical address) at call origination (for outbound calling), call termination (for incoming calls), and, if reasonably available, during the prog- ress of a call.” Also sought is information regard- ing the strength, angle, and timing of the caller’s signal measured at two or more cell sites, as well as other system information such as a listing of all cell towers in the market area, switching technol- ogy, protocols, and network architecture. Armed with this information, collectively known as “cell site data,” investigators are often able to locate sus- pects and fugitives. . . .

The issue presented here is what legal standard the government must satisfy to compel disclosure of such prospective or “real-time” cell site data. More particularly, is this location information merely an- other form of subscriber record accessible upon a showing of “specific and articulable facts” under 18 U.S.C. § 2703(d), as the government contends? Or does this type of surveillance require a more exact- ing standard, such as probable cause under Federal Rule of Criminal Procedure 41?

1. TECHNOLOGY

Unavoidably, some familiarity with cell phone technology is necessary to address this issue. A cell phone is a sophisticated two-way radio with a low-power transmitter that operates in a network of cell sites (footnote omitted). “Cell” refers to geo- graphic regions often illustrated as hexagons, re- sembling a bee’s honeycomb; a “cell site” is where the radio transceiver and base station controller are located (at the point three hexagons meet). Cell phones and base stations communicate with each other on frequencies called channels. Two frequen- cies are paired to create a channel; one for trans- mitting, one for receiving. Channels that carry only

IN Re APPlICATION FOR PeN ReGIsTeR AND TRAP/TRACe DeVICe WITH Cell sITe AUTHORITY

U.S. District Court, S.D. Texas, MAGISTRATE NO. H-05-557M (Oct. 14, 2005)

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Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices 493

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cell system data are called control channels. The control channel is a frequency shared by the phone and the base station to communicate information for setting up calls and channel changing when the user moves from one cell to another. By compari- son, voice channels are those paired frequencies which handle a call’s traffic, be it voice or data, as well as signaling information about the call itself. The cell site sends and receives traffic from the cell phones in its geographic area to a mobile telecom- munications switching office, which handles all phone connections and controls all base stations in a given region.

When a cell phone is powered up, it acts as a scanning radio, searching through a list of control channels for the strongest signal. The cell phone re-scans every seven seconds or when the signal strength weakens, regardless of whether a call is placed. The cell phone searches for a five-digit number known as the System Identification Code assigned to service providers. After selecting a channel, the cell phone identifies itself by sending its programmed codes which identify the phone, the phone’s owner, and the service provider. These codes include an Electronic Serial Number (a unique 32-bit number programmed into the phone by the manufacturer), and a Mobile Identification Number, a 10-digit number derived from the phone’s number.

The cell site relays these codes to the mobile telecommunications switching office in a process known as registration. . . .

It should be emphasized that cell site data transmitted during the registration process “are not dialed or otherwise controlled by the cellular tele- phone user.” This registration process automatically occurs even while the cell phone is idle. Moving from one service area to another triggers the regis- tration process anew. The cell site can even initiate

registration on its own by sending a signal to the cell phone causing the phone to transmit and iden- tify itself.

When the switching office gets an incoming call, it sends a “page” to the cell phone over the control channel. When the cell phone responds, the switching office assigns a voice channel to carry the actual conversation; at that point the control channel drops off. The speaker’s voice is converted into electronic digits (i.e. a series of 1s and 0s), which are then compressed for transmission over the voice channel.

In summary, a cell phone is (among other things) a radio transmitter that automatically announces its presence to a cell tower via a radio signal over a con- trol channel which does not itself carry the human voice. By a process of triangulation from various cell towers, law enforcement is able to track the move- ments of the target phone, and hence locate a suspect using that phone (footnotes omitted). . . .

3. PROSPECTIVE CELL SITE DATA AS TRACKING INFORMATION

Our analysis begins with the tracking device cat- egory, which appears at first glance to provide the most likely fit for cell site location monitoring. In its first opinion dealing with the ECPA, the Fifth Circuit cautioned that rigorous attention must be paid to statutory definitions when interpreting this complex statute: “Understanding the Act requires under- standing and applying its many technical terms as defined by the Act, as well as engaging in painstak- ing, methodical analysis.”

The ECPA’s definition of tracking device is concise and straight-forward:

As used in this section, the term “tracking

device” means an electronic or mechanical device

which permits the tracking of the movement of a

person or thing.

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18 U.S.C. § 3117(b). Aside from its welcome brevity, the definition is striking for its breadth. Note that a device is covered even though it may not have been intended or designed to track movement; it is enough if the device merely “permits” track- ing. Nor does the definition suggest that a covered device can have no function other than tracking movement. Finally, there is no specification of how precise the tracking must be. Whether from room to room, house to house, neighborhood to neigh- borhood, or city to city, this unqualified definition draws no distinction.

The government contends that this interpreta- tion of “tracking device” is too expansive, and points to the Senate Report on the ECPA which contained a glossary of technological terms defining “electronic tracking devices” as one-way radio “homing” de- vices. But even if this glossary definition accurately depicted the Senate’s working understanding of the term in 1986, that definition never made it into the United States Code. So, if the government is cor- rect that the glossary definition is narrower than § 3117(b), the only permissible inference is that Con- gress intended “tracking device” to have the broader meaning. Far from supporting the government’s po- sition, the glossary definition undermines it.

By adopting the broader language, Congress may simply have been anticipating future advances in tracking technology. Such advances have indeed come to pass:

Tracking devices have progressed a long way. Most

agencies now have sophisticated tracking devices that

use cell site towers or satellites. . . . These types of

tracking devices are usually monitored from the law en-

forcement agency’s office. Through the use of comput-

ers, a signal is sent to the tracking device (it is pinged),

and the tracking device responds. The signal is picked

up using cellular telephone cell sites or satellites. The

location of the tracker, and therefore the vehicle, is

determined through triangulation and a computer

monitor at the agency office shows the location of the

vehicle on a map. These tracking devices are very accu-

rate, and can differentiate between a vehicle traveling

on an interstate highway or the feeder (service) road.

The tracking devices will also provide the direction of

travel and the speed the vehicle is traveling.

. . . Thus, even traditional tracking devices such as beepers on vehicles are now monitored via radio signals using the very same cell phone towers used to transmit cell site data. Given this convergence in technology, the distinction between cell site data and information gathered by a tracking device has practically vanished. While Congress may not have known back in 1986 that a cell phone would come to be used as a tracking device, the broad language of § 3117(b) certainly left open that possibility.

While the cell phone was not originally conceived as a tracking device, law enforcement converts it to that purpose by monitoring cell site data. As with a tracking device, this process is usually surreptitious and unknown to the phone user, who may not even be on the phone. . . .

The government resists categorizing cell site data in the hands of service providers as informa- tion from a tracking device, because it is does not provide “detailed” location information. This argu- ment is unpersuasive. . . .

The government posits a slippery slope of adverse consequences unintended by Congress if cell phones could be classified as tracking devices under § 3117(b). For example, the government notes that land-line phones, computers, and even credit cards can sometimes reveal the user’s location, and these things have never been considered tracking devices. But learning a credit card user’s location at the point of purchase is far different from continu- ously monitoring a person’s movement from place to place in real time.

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In the same vein, the government argues that such a broad interpretation of § 3117(b) “would evis- cerate privacy protection under the Wiretap Act and the SCA for most communications now deemed electronic communications.” This argument rests on a fallacy—i.e., that classifying cell site data as tracking information means that a cell phone must be regarded solely as a tracking device for all pur- poses, so that any form of communication from a cell phone ipso facto becomes a communication from a tracking device. Such reasoning ignores the multi-functional nature of the modern cell phone. This device delivers many different types of com- munication: live conversations, voice mail, pages, text messages, e-mail, alarms, internet, video, pho- tos, dialing, signaling, etc. The legal standard for government access depends entirely upon the type of communication involved. Congress has decreed the highest protection for the contents of live con- versations acquired via wiretap, intermediate pro- tection for stored electronic communications, and the least protection for telephone numbers dialed. The legal threshold for each type of communica- tion is different, notwithstanding that a cell phone transmits them all. It would surely make no sense to impose the wiretap requirements upon a pen/ trap application merely because the cell phone can be used to intercept live conversations; it makes no more sense to impose the tracking device require- ments for access to other types of cell phone com- munications unrelated to physical location.

Ironically, it is the government’s position that threatens to undermine the federal statutory scheme for electronic surveillance. As we have seen, a cell phone can readily be converted by law enforce- ment to function as a tracking device, employing much the same technology as the modern beeper or transponder. Under the government’s theory, law

enforcement could simply install cell phones in place of the beepers currently underneath vehicles and in- side drum barrels, and eliminate forever the need to obtain a Rule 41 search warrant for tracking surveil- lance. As explained more fully in the next part, this would violate congressional intent by collapsing the barriers between the distinct categories of electronic surveillance erected by Congress in the ECPA.

A word about the Fourth Amendment implica- tions of cell site tracking is in order here. The gov- ernment contends that probable cause should never be required for cell phone tracking because there is no reasonable expectation of privacy in cell site location data, analogizing such information to the telephone numbers found unprotected in Smith v. Maryland, 442 U.S. 735 (1979). The Sixth Circuit re- jected that analogy in United States v. Forest, 355 F.3d 942, 951–52 (6th Cir. 2004). Unlike dialed tele- phone numbers, cell site data is not “voluntarily conveyed” by the user to the phone company. As we have seen, it is transmitted automatically dur- ing the registration process, entirely independent of the user’s input, control, or knowledge. Some- times, as in Forest, cell site data is triggered by law enforcement’s dialing of the particular number. For these reasons the Sixth Circuit was persuaded that Smith did not extend to cell site data, but rejected the defendant’s constitutional claim on the nar- rower ground that the surveillance took place on public highways, where there is no legitimate ex- pectation of privacy. Further support for a recogniz- able privacy interest in caller location information is provided by the Wireless Communication and Public Safety Act of 1999. This legislation authorized the deployment of a nation-wide 9-1-1 emergency service for wireless phone users, called “Enhanced 9-1-1.” Section 5 of the bill amended the Telecom- munications Act to extend privacy protection for the

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call location information of cell phone users . . . In other words, location information is a special class of customer information, which can only be used or disclosed in an emergency situation, absent ex- press prior consent by the customer. Based on this statute, a cell phone user may very well have an objectively reasonable expectation of privacy in his call location information. . . .

4. PROSPECTIVE CELL SITE DATA AND OTHER ECPA SURVEILLANCE CATEGORIES

Having concluded that prospective cell site data is properly categorized as tracking device information under § 3117, the question arises whether such data may not also be obtainable under other provisions of the ECPA. In other words, do the four broad cat- egories of the ECPA overlap, such that location in- formation obtainable from a § 3117 tracking device is simultaneously obtainable under the Wiretap Act, the SCA, or the Pen/Trap Statute? The answer to this question is clearly “no.”

Two of the categories may be discarded at the outset. The minimal pen/trap standard does not au- thorize access to cell site data; Congress made that much clear in the Communications Assistance to Law Enforcement Act of 1994 (“CALEA”):

[W]ith regard to information acquired solely pursuant

to the authority for pen registers and trap and trace

devices (as defined in section 3127 of Title 18), such

call-identifying information shall not include any in-

formation that may disclose the physical location of

the subscriber (except to the extent that the location

may be determined from the telephone number).

47 U.S.C. § 1002(a)(2) (footnote omitted; emphasis supplied).

Nor is the super-warrant wiretap standard appli- cable here, because the government is not seeking to intercept the contents of a phone user’s communi- cation. Cell site data does not reflect the “contents” of a communication as that term is defined by the

Wiretap Act. For the same reason, the first two parts of the SCA authorizing disclosure of the contents of stored communications do not apply, because the SCA incorporates the same definition of “contents.” The only remaining possibility for prospective cell site data is the SCA subscriber records category under § 2703(c). The government’s application un- derstandably invokes this authority, with its lesser “specific and articulable facts” threshold. However, neither the text nor the structure of the SCA supports the government’s contention.

Carefully reviewing the language of the SCA . . . we find no mention of cell site data in the laundry list of basic subscriber information con- tained in § 2703(c)(2). The list does include “ad- dress,” but this plainly refers to the subscriber’s nominal residence for billing or contact purposes, rather than the physical location(s) where the mo- bile phone is used. In order to be accessible under the SCA, therefore, cell site data must fit within the broader category of transactional information re- ferred to in § 2703(c)(1):

service or remote computing service.— (1) A gov-

ernmental entity may require a provider of electronic

communication service or remote computing service

to disclose a record or other information pertaining

to a subscriber or customer of such service (not in-

cluding the contents of communications).

The SCA does not define the term “record or other information pertaining to a subscriber or customer of such service,” nor has any reported case inter- preted the phrase. The legislative history is only slightly more helpful, noting that “the information involved is information about the customer’s use of the service.”

However, the ECPA does define other terms within § 2703(c)(1). The records to be disclosed must pertain to the subscriber’s use of the provider’s

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electronic communication service (footnote omit- ted). The term “electronic communication service” is defined as “any service which provides to us- ers thereof the ability to send or receive wire or electronic communications.” 18 U.S.C. §§ 2510(15), 2711(1) (emphasis added). The issue now becomes whether tracking device information, such as pro- spective cell site data, may constitute a record per- taining to “wire or electronic communications,” as those terms are defined by the ECPA. If not, then access to such information is not authorized under the SCA.

Here at last the statute ceases to be so murky, yielding more definitive answers. Tracking device information such as cell site data is plainly not a form of electronic communication at all. “Electronic communication” is defined as follows:

[A]ny transfer of signs, signals, writing, images,

sounds, data, or intelligence of any nature transmitted

in whole or in part by a wire, radio, electromagnetic,

photo electronic or photo optical system that affects

interstate or foreign commerce, but does not include—

■ ■ ■

fined in section 3117 of this title); . . .

18 U.S.C. § 2510(12)(C) (emphasis supplied). By virtue of this tracking device exclusion (footnote omitted), no communication from a tracking device can be an electronic communication. Real-time location moni- toring effectively converts a cell phone into a track- ing device, and therefore cell site data communicated from a cell phone is not an electronic communication under the ECPA.

The definition of “wire communication” does not contain a similarly explicit tracking device exclusion, but the answer is the same neverthe- less. “Wire communication” is defined to mean a

communication containing the human voice. Cell site data is not a wire communication under this definition because it does not involve the transfer of the human voice at any point along the path be- tween the cell phone and the cell tower. Although voice communications obviously do take place over a cell phone, this is accomplished on a chan- nel or frequency entirely separate from the control channel that transmits the cell site data necessary to set up the call. In fact, while the phone is on, cell site data is constantly transmitted over the control channel, even when the phone is not in use. To summarize, a communication from a tracking de- vice, such as cell site data, is neither an electronic nor a wire communication under the ECPA, and so it does not fall within the range of covered ser- vices provided by an “electronic service provider.” And since a subscriber does not use the phone to track his own movements in real time, prospec- tive cell site data appears to be unrelated to any customer (as opposed to law enforcement) use of the provider’s services. Thus, painstaking and methodical analysis of the SCA’s technical terms offers no support for treating prospective cell site data as a transactional record under § 2703(c)(1) (footnote omitted).

Even more compelling is the structural argu- ment against allowing access to prospective cell site data under the SCA. Unlike other titles of the ECPA, which regulate methods of real-time sur- veillance, the SCA regulates access to records and communications in storage. As implied by its full title (“Stored Wire and Electronic Communications and Transactional Records Access”), the entire fo- cus of the SCA is to describe the circumstances under which the government can compel disclo- sure of existing communications and transaction records in the hands of third party service provid- ers. Nothing in the SCA contemplates a new form

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of ongoing surveillance in which law enforcement uses co-opted service provider facilities.

Unlike wiretap and pen/trap orders, which are inherently prospective in nature, § 2703(d) orders are inherently retrospective. This distinction is most clearly seen in the duration periods which Congress mandated for wiretap and pen/trap orders. Wiretap orders authorize a maximum surveillance period of 30 days, which begins to run no later than 10 days after the order is entered. Pen/trap orders autho- rize the installation and use of a pen register for a period “not to exceed sixty days.” By contrast, Con- gress imposed no duration period whatsoever for § 2703(d) orders. Likewise, Congress expressly pro- vided that both wiretap orders and pen/trap orders may be extended by the court for limited periods of time. There is no similar provision for extend- ing § 2703(d) orders. Pen/trap results are ordinar- ily required to be furnished to law enforcement “at reasonable intervals during regular business hours for the duration of the order.” The wiretap statute authorizes periodic reports to the court concern- ing the progress of the surveillance. Again, nothing resembling such ongoing reporting requirements exists in the SCA.

Another notable omission from § 2703(d) is sealing of court records. Wiretap orders and pen/ trap orders are automatically sealed, reflecting the need to keep the ongoing surveillance under wraps. The SCA does not mention sealing. Pen/trap orders must also direct that the service providers not dis- close the existence of the order to third parties un- til otherwise ordered by the court. Section 2705(b) of the SCA authorizes the court to enter a similar non-disclosure order, but only upon a showing of possible adverse consequences, such as “seriously jeopardizing an investigation or unduly delaying a trial.” Taken together, the presence of these pro- visions in other titles of the ECPA and their cor- responding absence from the SCA cannot simply

be dismissed as a coincidence or congressional absent-mindedness. Pen registers and wiretaps are surveillance techniques for monitoring com- munications yet to occur, requiring prior judicial approval and continuing oversight during coming weeks and months; § 2703(d) permits access to cus- tomer transaction records currently in the hands of the service provider, relating to the customer’s past and present use of the service. Like a request for production of documents under Federal Rule of Civil Procedure 34, § 2703(d) contemplates the production of existing records, not documents that may be created at some future date related to some future communication. That is the most obvious ex- planation why the SCA makes no mention of sur- veillance periods, extensions, periodic reporting, or sealing. If Congress had not intended the SCA to be retrospective in nature, it would have included the same prospective features it built into the wiretap and pen/trap statutes.

6. CONCLUSION

[T]here is simply no reason to believe that Congress intended to treat location monitoring of cell phones as an exceptional type of electronic surveillance. While Congressional enactments are sometimes difficult to decipher, employing such a three-rail bank shot to create a new category of electronic surveillance seems almost perverse. Had Congress truly intended such an outcome, there were surely more direct avenues far less likely to confound and mislead judicial inquiry.

Denial of the government’s request for prospec- tive cell site data in this instance should have no dire consequences for law enforcement. This type of surveillance is unquestionably available upon a traditional probable cause showing under Rule 41. On the other hand, permitting surreptitious conver- sion of a cell phone into a tracking device without probable cause raises serious Fourth Amendment

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In 2011 the Department of Justice continued to advocate that the Fourth Amend- ment doesn’t apply because there is not reasonable expectation to privacy in the loca- tion data because individuals consent to have the data transmitted from their phones. Consequently, federal law enforcement officers routinely seek location data as well as other records. There have been challenges and several federal court decisions subse- quent to the Texas case you read have been issued on the questions; whether the Patriot Act authorizes warrantless “real time” monitoring of the location of cell phones and if so, whether this is consonant with the Fourth Amendment. In the meantime, the advent of global positioning system technology in cell phones has made it even easier to track the whereabouts of individuals carrying phones loaded with gps programs.29 Congress has not specifically addressed the subject and the Supreme Court has not heard the issue.

Stored Communications and Subscriber Records The Stored Communications Act30 amendment to Title III authorizes government access to information stored by telecommunications, cable, and Internet provider companies. This includes voice mail and e-mail.

The Stored Communications Act differentiates between information stored for less than 6 months and information stored for longer periods. The greater protec- tion is afforded to communications stored less than 6 months. If 180 days or less, a warrant, supported by probable cause is required. If 181 days or longer, either a warrant supported by probable cause or in the alternative, notice must be provided to the subscriber; a court order, administrative, or trial or grand jury subpoena must be issued; and there must be specific and articulable facts showing that reasonable grounds exist to believe the data sought are relevant and material to an ongoing investigation.

The statute also requires a communications provider to give the government access to client information, including name, address, telephone address, session information, and means of payment data (e.g., credit card number). Probable cause and a warrant are not required for this disclosure. Instead, the requirement is for specific and articulable

concerns, especially when the phone is monitored in the home or other places where privacy is rea- sonably expected. Absent any sign that Congress has squarely addressed and resolved those con- cerns in favor of law enforcement, the far more pru- dent course is to avoid an interpretation which risks a constitutional collision.

Judge Orenstein’s opinion was the first word on this topic; this opinion will undoubtedly not be the last. It is written in the full expectation and hope that the government will seek appropriate review by higher courts so that authoritative guidance will be given the magistrate judges who are called upon to rule on these applications on a daily basis.

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facts supporting a reasonable belief that the records sought are relevant to an ongo- ing investigation. In counterintelligence and terrorism investigations, the government can obtain stored information simply by certifying that the records are relevant to the investigation.

Violators of the Stored Communications Act are subject to both civil and crim- inal penalties, although the prison terms and fines are lesser than for violations of the Wiretap Act. Unlike the Wiretap Act, data obtained in violation of the Stored Communications Act are admissible in a criminal prosecution of the accused. Service providers who violate the Stored Communications Act are shielded with absolute immunity from liability. This provision is substantially different from the “acting in the normal course of employment” immunity for violations of the Wiretap Act.

Pen Registers and Trap Devices A pen register is a device that is attached to a telephone line to record the numbers of outgoing calls. A trap and trace device records the numbers of incoming calls. Neither of these devices records or accesses the content of telephone conversations. Because they do not access content, they are not governed by the Fourth Amendment or by the 1968 Title III act. Further, the Supreme Court had held that a person does not possess a privacy interest in the numbers that he or she dials.31 Even though not required by the Fourth Amendment, the 1986 ECPA32 requires federal and state law enforcement officers to obtain a court order to install such a device. However, the standard for issu- ance of the order is relatively low. An officer only needs to certify that the information likely to be obtained is “relevant” to an ongoing criminal investigation. The court to which the application for the order is made does not make an independent decision. Once certified, the court must issue the order. The statute specifically authorizes ex parte issuance of such orders.

Because the Act was adopted before the advent of e-mail, the legal requirements for identifying the recipients and senders of e-mail was unknown until 2001. The Patriot Act answered this question by expanding the definition of pen registers to include computer software that records identifying information of e-mail, such as Internet Protocol addresses. Further, the authority of court orders for computer infor- mation was expanded to include the entire nation. Previously, such orders could be executed only in the federal district where they were issued. Given the national nature of Internet communications, law enforcement officials often had to seek multiple war- rants during a single investigation.

In recent years, the Federal Bureau of Investigation has done just that. In June 2007, the FBI obtained a court order to send spyware (CIPAV) to a computer used by a person who had been sending bomb threats to a school near Olympia, Washington. The attempt was successful, resulting in the arrest and conviction of a juvenile who had been a student at the school. CIPAV, an acronym for computer and Internet protocol address verifier, was created by the FBI. How CIPAV works is not precisely known. But it appears to imbed software in a suspect’s computer that then reports identifying information back to the FBI.

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Another FBI program, Carnivore, has been the subject of some controversy. Carnivore is a computer wiretap system. The system requires a hardware installation at a suspect’s Internet service provider (ISP). Once installed, it can detect and filter all e-mail correspondence to and from a computer. Civil libertarians were concerned that the program would be installed without court order and that there would be no genuine filtering of messages for those related to possible criminal conduct. The FBI reports that it is no longer using Carnivore in favor of a similar program, Digital Collection System 1000 (DCS1000).

Yet another type of program used by the FBI has begun to attract attention—key logger systems (KLS). These programs record the keystrokes a computer enters. The FBI uses such programs to gain access to computer files that are password protected, especially those that are encrypted.

In 2001, a new FBI KLS program, Magic Lantern, is reported to have the ability to remotely record key strokes, using e-mail or other transmissions to enter a suspect’s computer.

Another interesting development during the George W. Bush administration was the assertion that the president possesses, pursuant to the commander-in-chief authority of Article II and Congressional authorization to use force to respond to the 9/11 attacks, the authority to order wiretaps without seeking FISA approval. In 2006, a U.S. district court held otherwise; and before the Sixth Circuit Court of Appeals heard the case, President Bush withdrew the assertion and agreed to use the established FISA procedure.33

National Security Surveillance In 2013 Edward Snowden, an employee of the National Security Agency (NSA), the lead U.S. agency responsible for collecting foreign intelligence and for securing U.S. intelligence systems, disclosed sensitive information to the press. The United States charged him with espionage and theft of government property, he fled the United States, and he was eventually awarded temporary asylum by Russia.34 His case became an international media sensation, provoking discussions around the world about data collection by governments, about democratic governance (privacy v. national security), international relations, and about the specific information that was disclosed, much of it embarrassing to the United States. But Snowden’s case wasn’t the first to raise the questions about information collection in the post-9/11 United States. There were other disclosures and discoveries, by federal government employees and others, that caused many people to worry about the erosion of privacy and abuses of power by fed- eral officials. Indeed, the Department of Justice acknowledged that the NSA collected private data in violation of the law, although rarely.35 As you will see below, at least one federal court has also found that the NSA violated national security law in its collection of data on U.S. persons in its Terrorist Surveillance Program.

Earlier you learned some of the criminal laws of national security, laws of sedi- tion, treason, and terrorism. National security is receiving special attention in this book because the rise in the terror threat in the United States has resulted in greater

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surveillance and detention authority by federal officials and because there has been a rapid increase in technology that enables surveillance into nearly every corner of life and mind.

National security law is highly complicated, spanning criminal law, administrative law, and constitutional law. The most significant legislation is the Foreign Intelligence Surveillance Act of 1978 (FISA).36 FISA regulates the collection of foreign intelligence by government officers, whether through wiretaps, pen registers, trap devices, and other electronic means, The 1978 FISA Act, which was enacted in response to intel- ligence gathering by the President Nixon administration, was substantively amended by the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (aka Patriot Act) and again in 2007 and 2008. These amendments widened the authority of federal officials to gather intel- ligence, often without court order.

Balancing the need for oversight and for secrecy, Congress provided in FISA for the establishment of the Foreign Intelligence Surveillance Court (FISC) and the For- eign Intelligence Act Court of Review (FISC). These courts are staffed by Article III federal judges who are appointed to the courts by the Chief Justice of the United States Supreme Court. FISC has the responsibility of issuing surveillance orders and reporting on its activities to Congress. FISCR acts as FISC’s appellate court. FISCR’s decisions may be appealed to the Supreme Court of the United States. In the interests of national security, both courts meet in secret. Although its hearings and deliberations are secret, the membership of the courts and their annual reports to Congress are available to the public. Select FISC orders, particularly those interpreting FISA, have been made pub- lic. In addition to FISC’s reports, the Department of Justice issues an annual report to Congress summarizing its FISA activities, including its applications for FISC orders, surveillance conducted without FISC order, and summaries of surveillance conducted.

FISA, and many judicial decisions that predated FISA, is constructed around the idea that the Fourth Amendment distinguishes standard criminal cases from national security cases. Criminal investigations are aimed at preventing, discovering, and pun- ishing crime, typically targeting persons in the United States, while national security cases are aimed at preventing attack and protecting the political, economic, social inter- ests of the United States through surveillance of foreign governments and their agents. At the highest levels, the distinction is clear. Closer to the ground, in individual cases, it is more difficult to discern. The legal distinction is significant.

In an attempt to preserve the balance between privacy of U.S. persons and the need to gather data threatening the security of the Nation, FISA initially authorized the United States to “spy” on two targets: foreign powers and agents of foreign powers. Foreign governments, officers of foreign governments, and entities doing the work of foreign governments are all foreign powers. Agents of foreign powers include anyone, except U.S. citizens and permanent residents, who act on behalf of foreign govern- ments in clandestine information gathering in the United States. So the original FISA applied to foreign governments and their spies.

Through the Patriot Act and other amendments to FISA, the definition of for- eign power has been expanded to include groups engaged in international terrorism,

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foreign political groups that are not substantially composed of U.S. persons, and entities not substantially composed of U.S. persons engaged in the international proliferation of weapons of mass destruction. Agents of foreign powers have also been expanded to include non-U.S. persons engaged in international terrorism or the international proliferation of weapons of mass destruction, even if unconnected to a foreign power.

FISA applies to the collection of foreign intelligence. The provisions of FISA au- thorizing the United States to collect data apply only if it can be shown that the data relate to, or are necessary to prevent, attacks or other grave hostile acts upon the United States by a foreign power or agents of foreign powers, the proliferation of weapons of mass destruction, spying on the United States, espionage, or are needed to advance foreign affairs or the security of the Nation.

Generally an FISC order is required for the federal government to conduct foreign intelligence surveillance. FISC must find that probable cause exists to believe that the target of the surveillance is a foreign power or an agent of a foreign power and that the form of communication to be intercepted is in the foreign powers control. Business records orders are easier for the government to obtain. The government only has to show that the records are relevant to an ongoing investigation.

During ordered surveillance, FISA requires the Attorney General to “minimize” the acquisition, retention, and dissemination of records about U.S. persons. In cases where intelligence officers and law enforcement officers are working together, a “wall” must be created, keeping records acquired during foreign surveillance from criminal investigators. That evidence must be obtained by criminal investigators by other means.

There are two instances where an FISC order is not required for surveillance. The president may authorize surveillance if the Attorney General certifies, under oath, that the communication devices to be monitored belong to foreign powers or that it is “technical intelligence” from a foreign power being sought. The law is clear that U.S. persons are not to be targets: “There is no substantial likelihood that the surveillance will acquire the contents of any communication to which a U.S. person is a party.” Additionally, the Attorney General is to minimize and report these activities. Since an amendment to FISA in 1995, the president is also authorized to order the intrusion of physical spaces controlled by foreign governments in order to collect intelligence. FISC has the same authority.

The 1978 version of FISA required that the purpose of foreign surveillance be the collection of foreign intelligence. In a highly criticized change, the Patriot Act softened the purpose requirement to significant purpose, thereby permitting the government to have other primary objectives, such as gathering criminal evidence.

Generally, the president is authorized, through the Attorney General, to college foreign intelligence information from foreign governments for as long as a year. If the target is an agent of a foreign government, the Attorney General must petition FISC for an order.

FISA also empowers the government to obtain data from third parties, typically communication companies. In some instances, third parties have voluntarily provided

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in the photos should be similar in appearance. Also, a “mug shot” (a picture taken by law enforcement agencies after arrest) of the accused should not be mixed with ordi- nary photos of nonsuspects. Nor should the photos be presented in such a manner that the defendant’s picture stands out.

The Supreme Court has determined that there is no right to counsel at a photo identification session, either before initiation of the adversary judicial proceeding or thereafter.

Forensic Identification Procedures Law enforcement officials may use scientific methods of identification to prove that a defendant committed a crime. Fingerprinting, blood tests, genetic tests (deoxyribo- nucleic acid, or DNA, testing), voice tests, and handwriting samples are examples of such techniques.

Such tests are not critical stages of the criminal proceedings, and, accordingly, there is no right to counsel. There is also no right to refuse to cooperate with such testing on Fifth Amendment grounds, because the defendant is not being required to give testimony. However, if a test involves an invasion of privacy, then the Fourth Amendment requires probable cause before the procedure may be forced on an unwilling defendant.

Confrontation and Cross-examination Clause issues are raised when forensic experts testify as to what other experts have found or analyzed. See Chapter 15 for a more thorough discussion of these issues.

Validity and Reliability Scientific evidence must be reliable before it may be introduced at trial. In a landmark case, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), it was held that scientific techniques must be generally accepted as valid and reliable by the scientific commu- nity to be admissible. Frye was the law from 1923 until the Supreme Court issued Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786 (1993). Daubert changed the standard of admissibility from acceptance in the scientific community to scientific validity. Under this new standard, the trial judge is required to make a preliminary determination that the proffered evidence is valid before it may be presented to a jury. In making this decision, the trial judge is to consider the following factors:

1. Whether the evidence or theory has, or can be, tested. 2. Whether it has been reviewed and tested by other scientists. 3. Whether the method has been published and the quality of the publication(s)

in which it is found. 4. Whether its error rate and other potential defects are known. 5. Whether standards and protocols for its use have been established. 6. Whether its use is widely accepted in the relevant scientific community.

Techniques that are experimental and not highly reliable are not admissible. A few common scientific techniques are discussed here. Note that the results of a specific test

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may be denied admission, even if the scientific basis of the testing is valid, if the test is administered incorrectly. Further, scientific testing also raises Fourth, Fifth, Sixth, and Fourteenth Amendment issues, some of which are discussed later.

Fingerprinting A fingerprint consists of several identifiable characteristics, such as loops, arches, whorls, islands, and bifurcations. The arrangement, frequency, and design of these features are among the many characteristics used to distinguish prints from one an- other. See Exhibit 13–4. Although it is common to state that every person has a unique set of prints, there is a possibility of duplication. However, the odds of that occurring have been estimated to be as low as one in 64 billion.45

Fingerprint identification is a highly accurate science and is universally accepted by federal and state courts.46 Federal and state law enforcement agencies, as well as international agencies, possess libraries of fingerprints. Through the use of computers, fingerprints lifted from crime scenes, weapons, and other objects can be matched to a particular individual’s fingerprints in a matter of minutes. Lifted prints may be matched to a print already on file or to a print taken from a suspect.

exhibit 13–4 A FINGERPRINT

et h

Jo el

/D ig

ita l V

is io

n/ G

et ty

Im ag

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The taking of fingerprints does not implicate the Fifth Amendment, because the accused is not compelled to give testimony. Further, it is not a search to take a suspect’s fingerprints. This being so, neither probable cause nor a warrant is required to take the suspect’s prints. Courts have analogized fingerprints to physical characteristics such as hair and eye color. Because it is not an invasion of a reasonable expectation to privacy (search) for an officer to visually observe a defendant, courts have reasoned that it is not an invasion of privacy to observe and record a suspect’s fingerprints.

Blood Testing Blood testing is commonly employed and universally accepted by courts in the United States. Although the science of blood testing is generally beyond scrutiny, individual blood tests are not. Laboratories make mistakes, and both the defense and the prosecu- tion may challenge a particular test.

Securing a suspect’s blood is different from rolling a fingerprint. The process of withdrawing blood involves a bodily invasion and the possibility of pain and infection. Therefore, a person’s expectation of privacy is higher when the government seeks blood rather than fingerprints. Whether the government possesses the authority to compel a suspect to undergo a blood test was the subject of Schmerber v. California.

Schmerber stands for the principle that the withdrawal of blood, as well as other bodily intrusive procedures, constitutes a search under the Fourth Amendment. Prob- able cause is required, as is a warrant, unless exigent circumstances, such as those in Schmerber, justify bypassing the warrant requirement. In addition, such procedures must be conducted in a safe, discrete, medical environment.

Petitioner was convicted in Los Angeles Municipal Court of the criminal offense of driving an automobile while under the influence of intoxicating liquor. He had been arrested at a hospital while receiving treatment for injuries suffered in an accident involving the auto- mobile that he was apparently driving. At the direction of a police officer, a blood sample was then withdrawn from petitioner’s body by a physician at the hospital. The chemical analysis of this sample revealed a per- cent by weight of alcohol in his blood at the time of the offense which indicated intoxication, and the report of this analysis was admitted in evidence at trial. . . .

II. THE PRIVILEGE AGAINST SELF- INCRIMINATION CLAIM

. . . We . . . must now decide whether the withdrawal of the blood and admission in evidence of the anal- ysis involved in this case violated petitioner’s privi- lege. We hold that the privilege protects an accused only from being compelled to testify against him- self, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends. . . .

sCHMeRBeR V. CAlIFORNIA 384 U.S. 757 (1966)

(continued)

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IV. THE SEARCH AND SEIZURE CLAIM

The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State. . . .

The values protected by the Fourth Amend- ment thus substantially overlap those the Fifth Amendment helps to protect. . . .

Because we are dealing with intrusions into the human body rather than with state interferences with property relationships or private papers— “house, papers, and effect”—we write on a clean slate. . . .

In this case, as will often be true when charges of driving under the influence of alcohol are pressed, these questions arise in the context of an arrest made by an officer without a warrant. Here, there was plainly probable cause for the officer to arrest petitioner and charge him with driving an automobile while under the influence of intoxi- cating liquor. The police officer who arrived at the scene shortly after the accident smelled liquor on petitioner’s breath, and testified that petitioner’s eyes were “bloodshot, watery, sort of a glassy ap- pearance.” The officer saw petitioner again at the hospital, within two hours of the accident. There he noticed similar symptoms of drunkenness. He thereupon informed petitioner “that he was under arrest and that he was entitled to the services of an attorney, and that he could remain silent, and that anything he told me would be used against him in evidence.”. . .

Although the facts which established prob- able cause to arrest in this case also suggested the required relevance and likely success of a test of petitioner’s blood for alcohol, the question remains whether the arresting officer was permitted to draw

these inferences himself, or was required instead to procure a warrant before proceeding with the test. Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions of the human body are concerned. . . . The importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great.

The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened “the destruction of evidence.”. . . We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the sys- tem. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. . . .

Finally, the records show that the test was per- formed in a reasonable manner. Petitioner’s blood was taken by physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.

sCHMeRBeR V. CAlIFORNIA (c o nt i nu e d)

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The Supreme Court refused to create a per se rule out of the Schmerber decision in the 2013 case Missouri v. McNeely. In that case, Missouri argued that the inherently evanescent nature of alcohol justified, per Schmerber, the routine warrantless drawing the blood of drivers who refuse to submit to breath testing and where police have prob- able cause to believe the drivers have been driving while intoxicated. The Court penned

It is true that as a result of the human body’s natural metabolic processes, the alcohol level in a person’s blood begins to dissipate once the alcohol is fully absorbed and continues to decline until the alcohol is eliminated. . . . But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.

The context of blood testing is different in critical respects from other destruction- of-evidence cases in which the police are truly confronted with a “‘now or never’” situation. In contrast to, for example, circumstances in which the suspect has control over easily disposable evidence, BAC evidence from a drunk-driving suspect naturally dissipates over time in a gradual and relatively predictable manner. Moreover, because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant.

The State’s proposed per se rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple. The Federal Rules of Criminal Procedure were amended in 1977 to permit federal magistrate judges to issue a warrant based on sworn testimony communicated by telephone. As amended, the law now allows a federal magistrate judge to con- sider “information communicated by telephone or other reliable electronic means.” Fed. Rule Crim. Proc. 4.1. States have also innovated. Well over a ma- jority of States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic com- munication such as e-mail, and video conferencing. And in addition to technology-based developments, jurisdictions have found other ways to streamline the warrant process, such as by using standard-form warrant applications for drunk-driving investigations.

The extent of the intrusion in to the body, the medical risk of the intrusion, and the likelihood of the evidence being lost to delay are all factors in the decision whether a warrant must be obtained. In Cupp v. Murphy, for example, the warrant- less scraping of blood from the fingernail of an accused murderer was upheld by the Supreme Court because it involved no medical risk and the risk of destruction of the evidence was large.47

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But the opposite conclusion was reached in Winston v. Lee,48 where the Supreme Court employed the analysis outlined in Schmerber and concluded that a defendant accused of armed robbery could not be compelled to undergo surgery to remove a bullet from his chest. The Court held that the suspect’s interest in his health and bodily privacy outweighed the government’s interest in obtaining the evidence. Also important to the Court was the fact that the government had other evidence to prove the defendant’s guilt. This lowered the government’s interest in having the bullet removed. If the bullet had been critical to the government’s case, the result might have been different.

DNA Testing Deoxyribonucleic acid (DNA) is a complex compound with two strands that spiral around one another, forming a double helix. Within the helix are molecules, called nucleotide bases, that connect the strands. There are four bases, identified by the let- ters A, T, G, and C. The A base of one strand attaches to the T base of its counterpart strand. In the same manner, the G base of one strand connects to the C base of the opposing strand. There are more than 3 billion base pairs in human DNA. However, only 3 million of these differ from person to person. The precise vertical ordering of these pairs determines a person’s genetic code. See Exhibit 13–5.

exhibit 13–5 A DNA STRAND

te ve

T ay

lo r/

Ph ot

od is

c/ G

et ty

Im ag

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Through biological specimens, such as hair, blood, tissue, and semen, evidence from crime scenes can be compared with specimens from suspects. This testing is known as DNA printing or genetic fingerprinting. DNA printing compares the codes and determines if they are from the same individual. DNA testing is sophisticated, and if properly performed, nearly conclusively establishes identity. The possibility of a chance match, assuming perfect testing, has been estimated to be 1 in 3 trillion.49

DNA has proven to be an effective weapon for both prosecutors and defendants. In recent years, several convicted felons have used DNA testing to prove their inno- cence and secure their release. This has occurred, for example, in rape cases where blood and semen were used as prosecution evidence, but DNA testing was unavailable. After their conviction, and from prison, these men used DNA testing to establish their innocence and set aside their verdicts. Prosecutors are increasingly relying on DNA evidence to prove their cases. DNA evidence was first used in a criminal prosecution in the United States in 1987. Forty-two percent of prosecutors reported having used DNA evidence by 1994, and the number rose to 68 percent by 2001. DNA evidence is most commonly used in sexual assault and murder cases. Overall, conviction rates in cases where prosecutors have introduced DNA evidence are high.

DNA testing is not perfect. The testing method is sophisticated, and errors can be made. For instance, methodology was hotly contested in the O. J. Simpson mur- der trial of 1995. Further, interpretations of test results differ. It is, therefore, im- perative that a reliable laboratory be selected. Further, in some cases, the defense and prosecution may have independent DNA testing conducted. Despite the possibility of error (false positive and false negative findings), courts have generally held that DNA evidence is sufficiently reliable for admission into evidence. The parties may, of course, challenge the accuracy of a particular DNA test.50

In recent years the federal government and several states have enacted legislation concerning the use of DNA in criminal proceedings. For example, Congress authorized the creation of a national DNA database (CODIS) in 1994. Ironically, however, the statute did not authorize the collections of samples; CODIS remained unused until 2000, when federal law was changed to require the collection of samples from all indi- viduals convicted of federal crimes.

Today, statutes in all 50 states authorize state and local officials to collect DNA samples from individuals convicted of terrorism, violent, sexual, and some property crimes. These samples are entered in CODIS. In 2006, the federal DNA Fingerprint Act of 2005 became effective.51 This law expands collection of DNA samples to include individuals arrested and detained by federal authorities. However, DNA samples are to be destroyed and records expunged for individuals whose cases have been dismissed.

In many states and the federal government, another recent change in law has been the use of DNA evidence to toll the applicable statute of limitation. In such jurisdic- tions, law enforcement may use the DNA fingerprint in lieu of a name to file the charge and obtain an arrest warrant for the individual identified by the DNA. Once the war- rant is issued, the statute of limitation is tolled. A few states, including Colorado, have gone so far as to automatically toll the statute after a suspect has been identified by DNA evidence.52

DNA printing

■ Comparing body tissue

samples (such as blood,

skin, hair, or semen) to see

if the genetic materials

match. The process is used

to identify criminals by

comparing their DNA with

that found at a crime scene,

and it is used to identify a

child’s parent. Most states

allow its use as evidence.

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An open question is whether police must have probable cause or obtain a warrant before conducting non invasive DNA tests, such as cheek swabs. Similarly, the ques- tion whether one has a right to counsel at pretrial non invasive DNA testing hasn’t been answered by the Supreme Court. At least one state court has determined that only reasonable suspicion is required, no warrant must be obtained, and there is no right to counsel during DNA cheek swabs.53

The practice of systematically taking DNA samples from felony arrestees was chal- lenged and decided by the Supreme Court in Maryland v. King (2013). The Supreme Court upheld the practice because of the many benefits of the testing, the reliability and validity of the science, and the minimal invasion of a cheek swab.

Voice Tests Compelling a suspect to speak for the purposes of audio identification is not violative of the Fifth Amendment’s prohibition against compelled self-incrimination. This is because the purpose in compelling the statements is identification, not to secure testi- mony. Again, the voice is considered a physical characteristic that is readily observable to the ordinary person; accordingly, it is not a search under the Fourth Amendment to compel a suspect to speak.

Voice is also at issue whenever a party intends to introduce audio records that purport to be a particular individual’s, such as the defendant. For example, assume John is charged with murdering Henry. The police have in their possession a tape from John’s telephone answering machine. The tape contains a threat to Henry’s life that the government claims was made by John. To prove that John made the threat, the prosecutor plans to introduce voice spectrographic identification evidence.

This test involves a comparison of the recording and a voice sample provided by the defendant. It compares the complex sound waves of the two for similarity. The ac- curacy of voice spectrographics is questionable, and therefore this type of evidence is not universally accepted by courts. In some jurisdictions, admissibility is prohibited, whereas in others the decision is left to the trial judge.

Polygraph Tests Polygraph testing, also known as lie detection testing, measures a subject’s physical responses, such as heartbeat, blood pressure, and perspiration, during questioning. This is not a new concept. The Chinese monitored the heartbeat of suspects as long as 4,000 years ago. If a suspect’s heartbeat increased during a response, he was pre- sumed to have lied. Until recently, courts have held that the results of polygraph evi- dence are too unreliable to be admitted at trial, unless the parties have stipulated to admission. Today, however, a few jurisdictions permit the introduction of polygraph evidence if it is determined reliable. That is, polygraph evidence is not automatically excluded, but may be if found to be unreliable in a specific case. In United States v. Scheffer (1998),54 the Supreme Court held that defendants do not have a right to in- troduce the results of a polygraph examination over the objection of the prosecution and where evidentiary rules preclude polygraph results. The Court found that the right of defendants to present evidence has been limited historically to that which is

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reliable. The Court found that the scientific community is divided on the reliability of polygraph exams and asserts; the results of such exams may be excluded at trial.

In addition to the issue of reliability, a Fifth Amendment self-incrimination issue surfaces when a prosecutor seeks an order requiring a defendant to undergo a poly- graph examination. The Supreme Court has stated in dictum,55 and the lower courts have similarly ruled directly, that lie detector tests involve communications and, ac- cordingly, that the Fifth Amendment applies. Defendants may refuse to respond to questions when the answers may be incriminating, and Miranda-type warnings should be given before the test begins, assuming that custody exists. Further, a prosecutor may not refer to a defendant’s refusal to submit to polygraph testing at trial.

Chain of Custody To assure that physical evidence discovered during an investigation remains unchanged and is not confused with evidence from other investigations, police must maintain the chain of custody. The officer who discovered the evidence must mark it; and all subse- quent contacts with the evidence, such as by forensics officers, must be recorded. This creates a record known as the chain of custody. Chain-of-custody records must be kept from the time the evidence is seized until it is introduced at trial. Breaks in the chain of custody may result in exclusion of the evidence at trial.

In some instances, evidence may be admitted even though the chain of custody has been broken. If evidence is easily identified by a witness, such as its owner, then proving the chain of custody may not be necessary. This may also be true if an item is unique and can be precisely identified by its characteristics (e.g., serial and model numbers). Even in these cases, chain of custody is sometimes required, and the best practice is for the police to maintain a chain in every instance.

The burden of establishing the chain of custody rests with the party seeking admis- sion. The standard of proof is characterized differently among the states, but usually amounts to a preponderance of the evidence. In some jurisdictions, proof of police policy, custom, and practice may be used to prove chain of custody.

Exclusion of Improper Identifications The consequences of not providing counsel during an identification procedure after the adversary judicial proceeding has begun were discussed in Wade. First, testimony about an illegal identification must be excluded at trial. Second, in-court identifications may be excluded if tainted by the pretrial identification. However, if the government can show, by clear and convincing evidence, that an in-court identification has a source independent of the illegal pretrial identification, then it is to be allowed. The Wade Court said the following factors are to be considered when making the taint or no taint determination:

1. The prior opportunity to observe the criminal act. 2. The difference between a witness’s pre-lineup description and actual description

of an accused. 3. Whether the witness identified another person as the criminal before the lineup.

chain of custody

■ The chronological list

of those in continuous

possession of a specific

physical object. A person

who presents physical

evidence (such as a gun

used in a crime) at a

trial must account for its

possession from time of

receipt to time of trial in

order for the evidence to be

“admitted” by the judge.

It must thus be shown that

the chain of custody was unbroken.

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4. Whether the witness identified the accused by photograph prior to the lineup. 5. Whether the witness was unable to identify the accused on a previous occasion. 6. The lapse of time between the crime and the identification.

In most cases, a court will find an independent source for an in-court identification and will allow a witness to identify the defendant during trial, while prohibiting mention of the pretrial identification.

The same rules apply to identifications that are impermissibly suggestive and unreliable. They must be excluded, as must the fruits thereof, unless an independent basis for an in-court identification can be shown.

leGAl ADVICe As WAR CRIMe?

In response to a request from White House Counsel at that time (and soon to be attorney general) Roberto Gonzales, two Department of Justice attorneys—John Yoo, deputy assistant attorney general, and Jay S. Bybee, assistant attorney general (soon to be U.S. district judge)—drafted a memo- randum in 2002 addressing questions the Central Intelligence Agency had concerning interrogation methods that may be used in the war on terror. Specifically, the definition of torture was sought. The memo, commonly known as the “torture memo,” defined torture as

Physical pain [the] equivalent in intensity to the pain accompanying serious

physical injury, such as organ failure, impairment of bodily function, or even

death. . . . We conclude that the statute, taken as a whole, makes plain that it

prohibits only extreme acts.

The memo went on to conclude that to qualify as mental torture, treat- ment “must result in significant psychological harm of significant duration, e.g., lasting for months or even years.”

Many scholars and commentators have criticized the memo, alleg- ing that it was not well reasoned and because it was relied on by the White House, abuses of detainees of the war on terror resulted. Yoo, who has been a vocal defender of the memo, contends that the definition was largely driven by Congress’ definition of torture, which developed when it ratified the United Nations Convention Against Torture.

Some scholars have moved beyond criticizing Bybee and Yoo for their analysis; instead, they claim the authors violated their ethical re- sponsibilities as lawyers in rendering the opinion. So much so, some have charged—including Milan Markovic—they were reckless and complicit in war crimes. According to Markovic, that they did not torture anyone themselves is not dispositive. Recklessness is the mens rea of aiding and

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abetting the international war crime of abusing detainees. He contends that the International Criminal Court, of which the United States is not a member, as well as other nations, has jurisdiction to try the men.

It is highly unlikely that either attorney will be charged, domestically or abroad. It is also unlikely that their bar memberships will be chal- lenged. However, as international accountability grows, these questions will occur more frequently, and the attorney’s role and responsibilities in public international law will likely change.

See Milan Markovic, “Can Lawyers Be War Criminals?” 20 Geo. J. Legal Ethics 347 (2007); John Yoo, The Powers of War and Peace (Chicago: University of Chicago Press, 2005);

and John Yoo, “Behind the ‘torture memos,’” UCBerkeleyNews, January 4, 2005 http://www.berkeley.edu

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Web links national Constitution Center The National Constitution Center has information on the Constitution, educa- tional resources, and links to related websites. http://www.constitutioncenter.org

Access an interactive eBook, chapter-specific interactive learning tools, including flash cards, quizzes, and more in your paralegal CourseMate, accessed through www.CengageBrain.com.

Key Terms

admission chain of custody confession

DNA printing interrogation lineup

showup

1. List the rights included in the Miranda warnings. When must they be read to a defendant?

2. What happens if an officer fails to read a defendant his or her rights before obtaining a confession?

3. Is it a violation of the Federal Wiretap Law (Title III of the Omnibus Crime Control and Safe Streets

Act) for Gary to allow law enforcement officers to listen to a telephone conversation between himself and Terry without Terry’s knowledge? If so, what happens if Terry makes incriminating statements?

4. Does a defendant have a right to counsel at a lineup? If so, what is the source of that right?

Review Questions

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