At the end of its term in late June, the SCOTUS decided a Michigan case, holding that police must obtain a warrant prior to obtaining location and other data inside a suspect's cell phone. In so ruling, Chief Justice John Roberts said that modern digital technology allows wireless carriers to collect "deeply revealing" information about its customers.

This poses a problem under the 4th Amendment of the United States Constitution. The ruling was narrow to the extent that the High Court held open the prospect that police still may not need a warrant to obtain information about the location of a suspect on the day a crime was committed.

Tim Carpenter was convicted in the United States District Court for the Eastern District of Michigan for a series of armed robberies in Detroit and across Northern Ohio. The FBI used Carpenter's archived cell phone call location records to track his nearly every move over a long period of time.

Conservative critics of the decision feared that long-trusted law enforcement techniques may be compromised by a search warrant requirement. On the other hand, privacy advocates hailed the 5-4 ruling as a victory for our diminishing rights to digital privacy.

The issue presented in the case is whether law enforcement was required to first obtain a warrant from a neutral magistrate or judge prior to securing cell phone location data. In Carpenter, the data was so extensive, it was used to create a detailed map of the defendant's movements. This map was a powerful evidentiary component which led to the Defendant's conviction.

Although prior SCOTUS rulings have held that motorists do not have a reasonable expectation of privacy as to their driving movements, Justice Roberts held that people do not expect that the police are tracking their every move over a long period of time. The decision focused on the qualitative sea-change in digital data and its availability at the expense of basic privacy.

Historic cell phone location data and "real-time" cell phone location data are distinguished in Roberts' narrow ruling. Only the former would require a warrant, not the latter.

The bloc of conservative Justices asserted that the 4th Amendment, in its original context, did not apply to the method law enforcement used to collect ordinary business records.

Thus, for now, cell phone records have significant 4th Amendment protection under this narrow ruling. What is less clear is whether other forms of personal digital data will receive the same level of protection.

We here at Clarkston Legal have seen many criminal cases turn on the admission of maps based on cell phone data. The exclusionary rule implicit in the 4th Amendment is directly at issue in such cases.

The SCOTUS has decided a half-dozen significant cell phone related privacy cases. We will continue to monitor the High Court's docket to report on these interesting decisions.

Post #618
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That an outlier POTUS like Trump would pardon a firebrand like former Maricopa [Arizona] County Sheriff Joe Arpaigo should surprise no one; they're views are tightly aligned on the illegal immigration issue. It's just that, in this case, the pardon comes right on the heels of the conviction, and at the beginning of the President's term rather than in the traditional eleventh-hour of an administration.

More than a decade ago, a civil rights lawsuit was filed against the ousted Sheriff, alleging that he systematically violated the U.S. Constitution by profiling Latinos and arresting suspects based solely on their nationality in violation of the 4th Amendment's probable cause requirement. Like Trump, former Sheriff Arpaigo has had his differences with federal judges.

In Arpaigo's case, two judges enjoined the sheriff from detaining Latinos based solely on their appearance, and in the absence of any specific evidence that a law had been violated. The sheriff kept up the practice anyway.

Last month, Arpaigo's defiance resulted in a criminal contempt of court misdemeanor conviction. The swiftness of the presidential pardon made it one-of-a-kind.

Normally, presidential pardons are granted only after the appellate process has been exhausted and the convict has been in the penitentiary for several years, if not decades.

In Arpaigo's case, although federal judges Susan Bolton and G. Murray Snow issued an injunction against Arpaigo back in 2011, Snow followed-up with a series of subsequent orders. Thumbing his nose at the judiciary just like Trump has done over the past 18-monts, the sheriff insisted his law enforcement tactics were legal and he kept-up a rigorous campaign of Latino arrests until his ouster.

Article II of the U.S. Constitution grants the president the power, "to grant reprieves and pardons for offenses against the United States..." The SCOTUS has interpreted this power to extend to all federal crimes thus, its scope certainly includes Sheriff Arpaigo's contempt conviction.

One of the problems with wielding the presidential pardon power in real-time is that it seriously intrudes into the realm of the other branches of government. In the Arpaigo case, this pardon lessens the effectiveness of the Constitution as well as our civil rights laws. Also, the case obviously impedes the effectiveness and the powers of federal Article III judges.

Trump [being Trump] might realize just how much power he really has under the Constitution relative to the legislature and the judiciary. Wielding this power from the 4-corners of the document on a real-time, case-by-case basis to prosecute his political agenda could quickly burgeon into a constitutional crisis.

One of the legal challenges arising from this pardon is whether a chief executive can pardon a government official whose illegal conduct affects the constitutional rights of others. For her part, Judge Bolton has invited briefs on this legal issue rather than simply dismissing Arpaigo's case prior to the sentencing hearing.

There is no question Trump has the power to pardon at any point during his term. The constitutional/legal/political question is, should a chief executive exercise his Article II pardon powers to undo a recent conviction based on the political agenda of his administration, especially where the state actor's conduct affects individuals' constitutional rights.

No doubt, there are well-articulated answers on both sides. We here at the Law Blogger would like to hear from our readers on this one. Should Joe Arpaigo have been pardoned? And so soon after his conviction?

Post #604
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On Wednesday, I had an unusual professional experience: oral argument before the Michigan Supreme Court; a first in my 28-years of practice. The case, People v Robertson, was a simple one involving the "search and seizure" clause of the 4th Amendment to the United States Constitution.

Seven justices sit on our state's High Court. So when you appear before the Court, any one of those 7 justices can and do interrupt your argument to pose questions; questions to which you better have a good answer.

In nearly three decades of practicing law, both at a large Detroit law firm, and now a small firm in Clarkston, I have presented over 100 oral arguments to the Michigan Court of Appeals. When you appear at the Michigan Court of Appeals, you face a 3-judge panel.

Back at the turn of the Century the 280,000 square foot Michigan Hall of Justice was built using 14,000 limestone panels. The post-modern edifice, designed by Albert Khan Associates, houses both the Michigan Supreme Court, Court of Appeals, judicial offices and chambers, and some very impressive administrative offices.

It was a great experience to appear before our High Court. We now have to await the opinion [could be a month or two] to see whether our client prevailed, or whether the the Oakland County Prosecutor was successful in overturning Oakland County Circuit Judge Martha Anderson's decision to exclude damaging evidence in this drug possession and delivery case.

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Post #511

By: Timothy P. Flynn

A secret court; something very offensive to our Democracy.  Even as lawyers, we here at the Law Blogger had never heard of such a stealth tribunal until Edward Snowden blew the whistle on one of its rulings [i.e. the FISA Court's "classified" order to turn over all of Verizon's phone tracing data to the NSA].

Actually, the FISA Court has been around since the 1978 passage of the Foreign Intelligence Surveillance Act.  Following the September 11th terrorist attacks on our country back in 2001, FISA has been repeatedly amended, primarily through the Patriot Act.

Not surprisingly, since 9/11, FISA has expanded steadily along with the powers of the FISA Court.  The Bush Administration based its warrantless wiretapping practice on FISA; the Obama Administration, to the surprise of many of its supporters, has not only continued the program, but expanded the scope of electronic surveillance to apparently everyone in America.

The Edward Snowden case has shined a light on the 11-member FISA Court.  What that light has shown is that the secret court has evolved from providing quick case-by-case rulings on electronic surveillance scenarios, to building a body of "classified" constitutional decisions that are now hefting the weight of judicial precedent; all without a scintilla of public scrutiny.

We here at the Law Blogger would like to know:  who is on this secret court?  What decisions are they making that may affect our right to privacy?  And do we even still have a right to privacy while connected to the internet or connected to a cell phone?

The FISA Court's recent classified decisions have become so constitutionally significant that a recent NYT article compares the secret court to a "parallel Supreme Court".

One example of the shrouded jurisprudence emanating from the FISA Court is the application of the "special needs" exception to the warrant requirement of the 4th Amendment in terrorism cases.  Normally, law enforcement cannot conduct a search or seizure of a person without a warrant based on probable cause.

In 1989, SCOTUS created the "special needs" exception to the 4th Amendment's warrant requirement in the context of public transportation.  SCOTUS ruled that public railway workers could be drug-tested by the government without a warrant on the basis that the minimal privacy intrusion of the worker was superseded by the need for public transportation safety.

Apply this logic to the modern terrorism cases, and any matter that evokes our "national security" opens the door for the FISA Court to invoke the "special needs" exception.  This fast-expanding exception is now poised to swallow the 4th Amendment's warrant requirement whole.

Although we do not get to read the secret court's decisions, from which there is a very limited and rarely used appeal process, we are told -via the NYT- that a sturdy pillar of jurisprudence and precedent has arisen from the FISA Court: the collection of Metadata does not offend the 4th Amendment.

Well, ok, if the Star Chamber says so.  But we here at the Law Blogger thought that ours was an adversarial justice system characterized by thesis, antithesis, and synthesis.

Post Script: October 15, 2013 - The FISA has given the green light in several of its recent cases for the NSA to continue to collect cell phone use data on U.S. Citizens.  We wonder if our emails are also subject to NSA scrutiny...

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