By ERIC JONATHAN BREWER
SOUTH EUCLID, OH – Judge Gayle Williams-Byers sent a letter to law director Michael LoGrasso and chief of police David Nietert informing them a subpoena or “duces tecum” is not acceptable to obtain cell phone records of individuals suspected of committing crimes. The suburban city’s police are required to obtain search warrants supported by “probable cause.”
Williams-Byers’ letter was motivated by the Supreme Court of the United States (SCOTUS) June 22, 2018 ruling in Carpenter v. United States (138 S.Ct. 2206) that FBI agents needed a search warrant to access Timothy Ivory Carpenter’s cell phone records from a third party carrier.
Carpenter was given a 114 year sentence in 2014 by U.S. District Court Judge Sean Cox after the FBI arrested him and other players who robbed cell phone stores between Detroit, Michigan and Warren, Ohio.
Carpenter lost on appeal. Civil rights attorney Harold Gurewitz joined with the ACLU and took it to the SCOTUS. The justices agreed with Carpenter and reversed his conviction. He’s still in federal prison as he prepares for a new trial. They were deeply offended by FBI agents under the Obama justice department searching Carpenter’s life through his cell phone records for 127 days without a warrant.
Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch each wrote dissenting opinions. Chief Justice John Roberts wrote the 5-justice majority ruling.
We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information. In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government’s acquisition of the cell-site records here was a search under that Amendment.
Williams-Byers said she read the ruling and knew it was her duty to protect the 4th Amendment in the court she presides over: so she notified the city’s chief prosecutor attorney and police chief to move them and their employees towards compliance. The decision minimizes the risk of South Euclid facing liability for violating a citizen’s constitutional rights. It also lets law enforcement officers bringing criminal complaints to her court know what to expect.
This isn’t the first time Williams-Byers has moved to protect a citizen’s rights and limit the city’s liability for violating them. Upon entering office in 2012 she returned almost $90,000 to residents who were issued “criminalized” parking tickets council enacted without giving alleged offenders a right to a trial. She declared the ordinance and its enforcement unconstitutional and advised council to change the penalties to “civil.”
In her letter to LoGrasso and Nietert, Williams-Byers informs the two officials of the following:
I wanted to share with you both a recent U.S. Supreme Court decision that will impact the manner in which search warrants, particularly as they relate to cellular telephone data, should be handled going forward.
In Carpenter v. United States (138 S.Ct. 2206) a divided Court found in a 5-4 decision that police must have probable cause and a warrant to obtain more than six days of a person’s cell-site location information (CSLI). CSLI includes the date, time and length of each call, the phone numbers involved with each call, and the cell phone tower sites where the call began and ended. In the court’s decision, they applied a reasonable expectation of privacy standard as set forth in Katz v. United States, 389 U.S. 347 (1967) and found that previous Supreme Court decision predating current digital technology, including the decisions in Smith v. Maryland, 442 U.S. 735, 743 (1979) and United States v. Miller, 425 U.S. 435 (1976) were not instructive for determining whether persons have a reasonable expectation of privacy in CSLI. The court held that unlike the technology at issue in previous cases in which the third party doctrine had been applied, CSLI allows police to track their every movement over long periods of time and provides police with “near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.”
The Court noted that carrying a cell phone is indispensable to participation in modern society and noted that “given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection” and “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.” The final analysis indicated that the police in Carpenter undertook a search when they obtained the defendant’s CSLI and should have first obtained a warrant supported by probable cause.
Keep in mind that the Carpenter decision is expressly limited to the requirements for obtaining CSLI under the factual circumstances outlined in the case. It has been my experience that officers in most non-emergency situations often have sufficient evidence to support obtaining CSLI with a warrant and probable cause.
Therefore please be advised that I will look for search warrants for CSLI as opposed to the standard Duces Tecum customarily presented to the court for these records.
The Roberts’ court ruling examined critical facts about how information on the 396 million cell phone service accounts in a nation of 326 million. What they didn’t like was the idea of law enforcement agents having access to information about people like they were wearing a 24-hour ankle bracelet.
Cell phone tower pings are so accurate FBI agents were given information about Carpenter’s every move. What the FBI agents did with the information they obtained from Carpenter’s records amounted to a 127 day search or “mapping” of his life. They knew every place he visited and could investigate people in his life without them knowing it just because he showed up at their home or place of business.
The court ruled that although service account records are generated for commercial purposes, Carpenter still had an “anticipation of privacy in his physical location.” That would hold true even more for the people FBI agents documented him as visiting.
President Barack Obama’s supreme court appointee, Sonia Sotomayor, was critical of what his justice department officials had done. She wrote that “mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts.”
Sotomayor wrote that, “as with GPS information, the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his “familial, political, professional, religious, and sexual associations. These location records “hold for many Americans the `privacies of life.”
The late Justice Louis Brandeis’ visionary dissent and explanation of what type of 4th Amendment violations to expect from law enforcement’s use of future technologies in 1928 was referenced in the debate between the justices and opposing sides during oral arguments.
Brandeis’ dissent became the Katz v. United States 1966 majority the same year Congress enacted laws placing restrictions on the FBI’s unregulated use of the National Crime Information Center (NCIC). The late FBI Director J. Edgar Hoover originally called it his “general index” when he created it in 1918.
Hoover’s constitutionally-abusive surveillance of Rev. Martin Luther King, members of Congress and the justices of the supreme court had so offended Justice Potter Stewart, a former Republican mayor of Cincinnati, that he authored the following “Katz” words.
“A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, “what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz, 389 U.S., at 351-352, 88 S.Ct. 507.”
In this author’s “Fight Police License Plate Spying” the 127-page book reveals how Justice Stewart’s angry and condemning words above were motivated in part by learning he’d been spied on by Hoover’s FBI agents; and that they’d spied on his mother for being a member of Cincinnati’s League of Women’s Voters. Hoover had labeled her a possible Communist in his general index and told Stewart so when he rejected his application for that reason as an FBI agent.
Alito even in his dissenting thoughts about the 127 day search wrote that, “prior to the digital age, law enforcement might have pursued a suspect for a brief stretch, but doing so “for any extended period of time was difficult and costly and therefore rarely undertaken.” Id., at 429, 132 S.Ct. 945 (opinion of Alito, J.). For that reason, “society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period.” Id., at 430, 132 S.Ct. 945. Allowing government access to cell-site records contravenes that expectation.”
The ruling clearly affirmed that search warrants were needed to obtain private cell phone service account records from carriers. Law enforcement officers were given exigent reasons for when the warrants were not required.
“Such exigencies include the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence. 563 U.S., at 460, and n. 3, 131 S.Ct. 1849. As a result, if law enforcement is confronted with an urgent situation, such fact-specific threats will likely justify the warrantless collection of CSLI. Lower courts, for instance, have approved warrantless searches related to bomb threats, active shootings, and child abductions. Our decision today does not call into doubt warrantless access to CSLI in such circumstances. While police must get a warrant when collecting CSLI to assist in the minerun criminal investigation, the rule we set forth does not limit their ability to respond to an ongoing emergency.”
The SCOTUS majority also affirmed the idea that a private contract exists between the cell phone user and provider that guarantees certain privacy protection rights that are being violated by the carriers. A door may have opened for a class action complaint against the carriers.
What Williams-Byers has instructed South Euclid’s chief prosecuting attorney and chief of police to do before asking for cell phone records is to obtain a search warrant. The move also protects individual police officers.
Congress in 1994 enacted sections 241 and 242 of the United States Code (U.S.C.) within the Violent Crime and Law Enforcement Control Act Clinton signed into law. A violation of the 4th Amendment is a violation of 18 U.S.C. 241 and 242; and misprision of felony for officials who have knowledge and don’t report it pursuant to 18 U.S.C. 4.
What South Euclid council should discuss in the aftermath of Williams-Byers’ instructions to the city’s law enforcers is what the late Chief Justice Earl Warren and now the Roberts court have each repeatedly affirmed to Congress in their privacy-protecting rulings.
Law enforcement officers are using technology in ways that are un-codified. License plate scanners, facial recognition technology, cell phone mapping … none of the equipment or the way its being used is authorized by any federal, state or local law.
Two chief justices, Warren and Roberts, over a span of 52 years, each have expressed frustration that federal, state and local legislators through legislative inaction are letting law enforcement officers with a national average of 600 hours of training use technology and their unrestricted imaginations to pursue “bad guys.”
“Fight Police License Plate Spying” reveals in 1944 U.S. Attorney General Francis Biddle ordered Hoover to shut his database down because Congress hadn’t authorized it; and the information was inaccurate. It could not be used to establish probable cause.
Hoover ignored Biddle and ordered FBI agents to hide their activities from him until Congress halted the agency’s unauthorized use of Hover’s “general index” in 1966 and named it the National Crime Information Center. All of the FBI’s “known” surveillance databases were given titles and legislative instruction to law enforcement agents for the first time by Congress in 1966.
Roberts raised the alarm that the nation’s legislators even today need to address relative to the 4th Amendment issues connected to law enforcement’s continued expansion of surveillance by using technology to track citizens and store information about them without legislative authorization.
Legislation is much preferable to the development of an entirely new body of Fourth Amendment case law for many reasons, including the enormous complexity of the subject, the need to respond to rapidly changing technology, and the Fourth Amendment’s limited scope.
The Fourth Amendment restricts the conduct of the Federal Government and the States; it does not apply to private actors. But today, some of the greatest threats to individual privacy may come from powerful private companies that collect and sometimes misuse vast quantities of data about the lives of ordinary Americans.
If today’s decision encourages the public to think that this Court can protect them from this looming threat to their privacy, the decision will mislead as well as disrupt. And if holding a provision of the Stored Communications Act to be unconstitutional dissuades Congress from further legislation in this field, the goal of protecting privacy will be greatly disserved.”
Judge Williams-Byers told EJBNEWS she’s willing to work with South Euclid’s council, law director and police chief to discuss the surveillance technologies police use on the streets and in criminal investigations; and local legislation to control how it’s used in application to the 4th Amendment.
Nietert, as an example, has been signing agreements with the Ohio Highway Patrol to give South Euclid police access to the FBI’s NCIC and the state’s Law Enforcement Automated Data System (LEADS). The chief law enforcement officer of municipal corporations under Ohio law is the mayor. It’s mayors and safety directors, not police chiefs, under Ohio law who authorized to sign contracts that are approved by council.
Nietert also didn’t bring the city’s NCIC/LEADS “contract” to the mayor or council. So the city’s officials have not codified or are even aware of the federal and state laws enacted in the terms and conditions of the agreement the unauthorized police chief signed without their knowledge.
Federal NCIC statutes require South Euclid to give citizens access to the information that’s been stored on them and the opportunity to correct it. There are federal and state criminal penalties for law enforcement officers who misuse the databases. None are being enforced locally by officials who seem oblivious to current state and federal laws they’re supposed to enforce.
Williams-Byers said the SCOTUS ruling in “Carpenter” has triggered the conversation that at least her council should consider all uses of law enforcement surveillance tools by South Euclid police; and locally codify laws that Congress and the state’s general assembly have already enacted as a starting point.
Contact Eric Jonathan Brewer at email@example.com