Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
As communication technology outpaces the legal analyses of a bygone era, courts around the country must confront vitally important 21st century search and seizure issues. Nothing less is at stake than the vitality of the Fourth Amendment and our right to privacy. Confusion and inconsistency reign as courts struggle to apply amorphous search and seizure law to new realities. For example, there is now arguably a federal circuit split concerning warrantless GPS surveillance. And some states, like New York, have found warrantless GPS surveillance to violate their own constitutions. Warrantless cell phone searches incident to arrest have been found by Ohio’s Supreme Court to be a violation, while California’s Supreme Court reached the opposite conclusion. Eventually, the Supreme Court will clarify the law.
At issue is how we live in the age of instant communication, and whether we can reconcile privacy with progress. Is warrantless tracking and storing of our every move – for weeks on end, 24 hours a day, on a computer screen via a secretly implanted GPS on our cars – really nothing more than the equivalent of an investigator following us? Are our cell phones, with all of their private data, nothing more than containers that can be searched on arrest without a judge’s approval? How about our mail? Are our rights in the mail we send on the Internet any less protected than those in the mail we send via the U.S. Postal Service?
As “Liberty’s Last Champion,” NACDL members fight in the legislatures, courtrooms, and public squares of America every day to protect our rights, including those provided in the Fourth Amendment. The touchstone of these efforts must flow from the determination of the founders to keep the government from snooping in the “persons, houses, papers, and effects” of the people. We must ensure that this vision survives the invention of the cell phone and the laptop, just as another generation did with the telephone.
A recent case illustrates how courts are beginning to address these sensitive issues. In United States v. Warshak, the government, without a warrant, compelled defendant’s Internet service provider (ISP) to reveal the contents of thousands of private emails in a case concerning conspiracy, fraud, and money laundering by an herbal supplement distributor.
In this case, which garnered surprisingly little attention from the press, the Sixth Circuit found that government agents violated the defendant’s Fourth Amendment rights when, citing the outdated Stored Communications Act of 1986 (SCA), they seized his stored email without a warrant. “[An Internet] subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial ISP,” the court said. “Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.”
The court got it exactly right. How many email communications did we send and receive today? How many via snail mail? The SCA, the authority cited by the government in Warshak, was enacted in 1986, a time when personal computing was just taking off, and several years before the launch of the World Wide Web. What the Sixth Circuit accomplished here was a common sense application of a constitutional amendment ratified some 220 years ago. People have a right to the same privacy in their email as they do in their letters and their post office boxes. The police cannot storm the post office and seize our mail, and they cannot intercept our phone calls or voicemail messages without a warrant. This important opinion recognizes that the same Fourth Amendment protection applies to email.1
The people of this country reasonably expect and deserve protection from law enforcement agents who would snoop into their private communications without probable cause and a court order. But will the Warshak decision stand? At stake in the coming months and years is whether the Fourth Amendment can survive the 21st century. And, of course, none of this will mean anything if courts continue to find exceptions, as the Sixth Circuit did in reaching this holding but declining to apply the remedy of the exclusionary rule in the case before it. In the meantime, we should remain vigilant as defenders of the Constitution and continue to urge its enforcement.
1. High praise is due the defense team, NACDL Past President Martin
Pinales, former NACDL Board Member Martin Weinberg, and Robert
Goldstein. These three defenders are like a Fourth Amendment dream team.
They understand that the Constitution and the Bill of Rights still
reign as the supreme law of the land.
A Defender’s Guide to Federal Evidence: A Trial Practice Handbook for Criminal Defense Attorneys
This Guide to Federal Evidence is the only federal evidence handbook written exclusively for criminal defense lawyers. The Guide analyzes each Federal Rule of Evidence and outlines the main evidentiary issues that confront criminal defense lawyers. It also summarizes countless defense favorable cases and provides tips on how to avoid common evidentiary pitfalls. The Guide contains multiple user-friendly flowcharts aimed at helping the criminal defense lawyer tackle evidence problems. A Defender’s Guide to Federal Evidence is an indispensable tool in preparing a case for trial.
Modern Digital Evidence & Technologies in Criminal Cases
Modern cases need modern defenses, and modern lawyers can't practice with an outdated playbook. This program is a contemporary training that identifies emerging technologies and digital evidence encountered in today's criminal cases and arms you with the tools necessary to combat expert witnesses, prosecutorial overreach, and an uneducated judge and jury. This comprehensive CLE program covers both general aspects of new technologies as well as practical courtroom application and legal challenges to the use of these new technologies.
Top Shelf DUI Defenses: The Law, The Science, The Techniques (2021)
If you are serious about being an effective DUI defense advocate, or if you’re considering adding DUI defenses to your portfolio, you need to know the latest scientific and legal strategies to optimize your success at trial. Learn from the best-of-the-best in the field in this unique CLE Program, updated for 2021.
Defending Modern Drug Cases (2021)
From challenging the arrest and seizure to picking a jury and cross-examining police officers, defense attorneys handling drug cases must be able to construct a defense that will increase the chances of the client getting a positive result for your client.
Effective motion practice, juror selection, and storytelling have never been more important. This seminar will introduce defense counsel to techniques that have been used at recent drug trials to rebut specific claims and overcome the emotion created in today’s criminal legal system.