“Government self-interest corrupted a crime-fighting tool into an evil”

September 23, 2014

The Washington Post on September 18, 2014 released the following:

“By John Yoder and Brad Cates

John Yoder was director of the Justice Department’s Asset Forfeiture Office from 1983 to 1985. Brad Cates was the director of the office from 1985 to 1989.

Last week, The Post published a series of in-depth articles about the abuses spawned by the law enforcement practice known as civil asset forfeiture. As two people who were heavily involved in the creation of the asset forfeiture initiative at the Justice Department in the 1980s, we find it particularly painful to watch as the heavy hand of government goes amok. The program began with good intentions but now, having failed in both purpose and execution, it should be abolished.

Asset forfeiture was conceived as a way to cut into the profit motive that fueled rampant drug trafficking by cartels and other criminal enterprises, in order to fight the social evils of drug dealing and abuse. Over time, however, the tactic has turned into an evil itself, with the corruption it engendered among government and law enforcement coming to clearly outweigh any benefits.

The idea seemed so simple: Seize the ill-gotten gains of big-time drug dealers and remove the financial incentive for their criminality. After all, if a kingpin could earn $20 million and stash it away somewhere, even a decade in prison would have its rewards. Make that money disappear, and the calculus changes.

Then, in 1986, the concept was expanded to include not only cash earned illegally but also purchases or investments made with that money, creating a whole scheme of new crimes that could be prosecuted as “money laundering.” The property eligible for seizure was further expanded to include “instrumentalities” in the trafficking of drugs, such as cars or even jewelry. Eventually, more than 200 crimes beyond drugs came to be included in the forfeiture scheme.

This all may have been fine in theory, but in the real world it went badly astray. First, many states adopted their own forfeiture laws, creating programs with less monitoring than those at the federal level. Second, state law enforcement agencies and prosecutors started using the property — and finally even to provide basic funding for their departments.

Even at the outset, the use of seized property was an issue. Drug Enforcement Administration agents, for example, might see a suspected dealer in a car they wanted for undercover work and seize it. But if the car had an outstanding loan, the DEA could not keep it without paying the lien. This led to distorted enforcement decisions, with agents choosing whom to pursue based on irrelevant factors such as whether the target owed money on his car.

As time went on and states got into the forfeiture game, the uses became more personally rewarding for law enforcement. Maintaining an undercover identity was often no longer even part of the justification for seizures.

Law enforcement agents and prosecutors began using seized cash and property to fund their operations, supplanting general tax revenue, and this led to the most extreme abuses: law enforcement efforts based upon what cash and property they could seize to fund themselves, rather than on an even-handed effort to enforce the law.

Many Americans are familiar with old-time speed traps, which became so notorious that most state legislatures reformed their systems to require local police and courts to deposit traffic fines into the state treasury to avoid the appearance of biased justice. Today, the old speed traps have all too often been replaced by forfeiture traps, where local police stop cars and seize cash and property to pay for local law enforcement efforts. This is a complete corruption of the process, and it unsurprisingly has led to widespread abuses.

The Asset Forfeiture Reform Act was enacted in 2000 to rein in abuses, but virtually nothing has changed. This is because civil forfeiture is fundamentally at odds with our judicial system and notions of fairness. It is unreformable.

In America, it is often said that it is better that nine guilty people go free than one innocent person be wrongly convicted. But our forfeiture laws turn our traditional concept of guilt upside down. Civil forfeiture laws presume someone’s personal property to be tainted, placing the burden of proving it “innocent” on the owner. What of the Fourth Amendment requirement that a warrant to seize or search requires the showing of probable cause of a specific violation?

Defendants should be charged with the crimes they commit. Charge someone with drug dealing if it can be proved, but don’t invent a second offense of “money laundering” to use as a backup or a pretext to seize cash. Valid, time-tested methods exist to allow law enforcement to seize contraband, profits and instrumentalities via legitimate criminal prosecution.

Civil asset forfeiture and money-laundering laws are gross perversions of the status of government amid a free citizenry. The individual is the font of sovereignty in our constitutional republic, and it is unacceptable that a citizen should have to “prove” anything to the government. If the government has probable cause of a violation of law, then let a warrant be issued. And if the government has proof beyond a reasonable doubt of guilt, let that guilt be proclaimed by 12 peers.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

Federal Mail Fraud Crimes

Federal Crimes – Appeal

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To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.



“N.S.A. Experiment Traced U.S. Cellphone Locations”

October 3, 2013

The New York Times on October 2, 2013 released the following:

By CHARLIE SAVAGE

“WASHINGTON — The National Security Agency in 2010 and 2011 conducted a secret pilot project to test the collection of bulk data about the location of Americans’ cellphones, but the agency ultimately decided against putting such a program into play for now, according to intelligence officials.

The existence of the pilot project, which has not previously been reported, was recently declassified by James R. Clapper, the director of national intelligence, but it has not been publicly disclosed. It was outlined in a draft answer obtained by The New York Times and written for Mr. Clapper to read at a Senate Judiciary Committee hearing on Wednesday if he is asked about the topic.

The answer is one paragraph long and contains scant details. It says that the N.S.A. does not currently collect locational information under Section 215 of the Patriot Act, the provision that forms the asserted legal basis of its once-secret program that is collecting logs of all domestic phone calls from telephone companies.

“In 2010 and 2011 N.S.A. received samples in order to test the ability of its systems to handle the data format, but that data was not used for any other purpose and was never available for intelligence analysis purposes,” the draft answer says, adding that the N.S.A. has promised to notify Congress and seek the approval of a secret surveillance court in the future before any locational data was collected using Section 215.

An official familiar with the test project said its purpose was to see how the locational data would flow into the N.S.A.’s systems. While real data was used, it was never queried as part of any investigation, the official said. It was unclear how many Americans’ locational data was ingested as part of the project or whether the N.S.A. has held onto that information.

But Senator Ron Wyden, an Oregon Democrat who receives classified briefings as a member of the Intelligence Committee and who has raised oblique concerns about cellphone location tracking, said in a statement on Wednesday that there was more to know about the matter than the government has declassified.

“After years of stonewalling on whether the government has ever tracked or planned to track the location of law-abiding Americans through their cellphones, once again, the intelligence leadership has decided to leave most of the real story secret — even when the truth would not compromise national security,” Mr. Wyden said.

Questions about what, if anything, the N.S.A. has been doing in the bulk tracking of Americans’ movements using cell-site location data have been simmering for several years. The issue flared again last week following an ambiguous exchange between Mr. Wyden and Gen. Keith B. Alexander, the director of the N.S.A., at a Senate Intelligence Committee hearing.

Mr. Wyden has been a critic of domestic surveillance programs and filed legislation in 2011 and again this year that would require warrants for obtaining someone’s locational data for a criminal investigation, while leaving ambiguous whether a similar step was also necessary in the context of a national security investigation. It is unclear what prompted his concerns.

At the hearing, he asked Mr. Alexander “whether the N.S.A. has ever collected or made any plans to collect Americans’ cell-site information in bulk.”

General Alexander replied that the N.S.A. “is not receiving cell-site location data and has no current plans to do so” under Section 215 of the Patriot Act, which allows the secret surveillance court to issue orders for records from businesses — like telephone companies — if the records are “relevant” to an intelligence investigation.

But General Alexander also said there was other classified information that the N.S.A. had sent to the committee in July, in response to a written version of the same question, that provided “additional detail” responsive to the issue.

It is legally unclear whether long-term tracking of people’s locations and movements by the government raises privacy rights under the Fourth Amendment. In a 1979 case involving small-scale collection of “metadata” about telephone calls — information related to the calls, like the number dialed and the duration, but not the contents of the communications — the Supreme Court ruled that such records were not protected by the Constitution because people have already revealed the existence of their calls to telephone companies and so have no reasonable expectation of privacy.

But in 2012, the court ruled that the police’s use of a G.P.S. tracker attached to a suspect’s car violated Fourth Amendment privacy rights. The case turned on the fact that the police had to trespass on the suspect’s property to attach the device, but five justices separately suggested that any long-term, automated collection of a person’s public movements might raise Fourth Amendment issues.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

Federal Mail Fraud Crimes

Federal Crimes – Appeal

————————————————————–

To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


“Supreme Court OKs DNA swab in serious arrests”

June 3, 2013

USA Today on June 3, 2013 released the following:

Richard Wolf, USA TODAY

“The case pitted the practical benefits of modern technology against the centuries-old right to privacy.

WASHINGTON — A narrowly divided Supreme Court ruled Monday that police can collect DNA from people arrested but not convicted of serious crimes, a tool that more than half the states already use to help crack unsolved crimes.

The case, described by Justice Samuel Alito as “the most important criminal procedure case that this court has heard in decades,” represented a classic test between modern crime-fighting technology and centuries-old privacy rights.

In the end, the justices had to balance the benefits and the intrusion of a simple cheek swab — and the considerable benefits won out. Justice Anthony Kennedy wrote the majority’s 5-4 decision, in which one liberal justice, Stephen Breyer, concurred..

“DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure,” Kennedy said. “Taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

Justice Antonin Scalia wrote an angry dissent for himself and the court’s other three liberal justices, charging that the decision will lead to an increased use of DNA testing in violation of the Constitution’s protection against unreasonable searches.

“Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia warned. “This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane.”

Twenty-six states already collect DNA from those arrested for felonies or other serious crimes and upload it into a national database run by the federal government. The purpose: to find matches with unsolved crimes.

That’s how Alonzo Jay King was connected to a Maryland rape case for which he ultimately was convicted. Arrested in 2009 on an assault charge, King was linked by DNA evidence to the 2003 rape.

The Maryland Court of Appeals threw out his conviction, ruling that police needed a warrant or at least reason to suspect him of another crime before swabbing his cheek. The state, backed by the federal government, brought the case to the Supreme Court.

The justices have been inundated in recent years with difficult Fourth Amendment cases as well as others involving modern technology. Last year, they held that police could not attach a GPS tracking device to a car in order to monitor a suspect’s movements. This year, they ruled that using a drug-sniffing dog with reasonable suspicion was OK — but not at the door of a private home. And they decided that executing a search warrant after a suspect had left his home was out of bounds.

Modern technology presents a problem, however, particularly for justices who try to adhere to the Constitution. The framers didn’t have GPS or DNA to contend with in the late 18th century. In February, the court grappled with the patent rights of self-replicating soybeans. This month, they debated about a breast cancer detection technology that comes from human genes.

In this case, Maryland likened DNA to fingerprinting and other tools used to identify suspects. But opponents noted that police take DNA from people upon arrest to help in other investigations — a process that can lead to false hits and wrongful convictions.

During oral argument in February, Justice Sonia Sotomayor worried that DNA swabs could find their way into the nation’s schools and workplaces. Justice Elena Kagan quipped that if it works so well, “why don’t we do this for anybody who comes in for a driver’s license?”

On the other side were most of the court’s more conservative justices, but the debate revealed an unlikely mix. Most convinced about the promise of DNA was Alito, who called it “the fingerprinting of the 21st century.” He noted that the criminal justice system has “lots of murders, lots of rapes that can be solved.”

The oral argument also revealed an unlikely split among the justices. While liberal Justice Stephen Breyer said the practice targets only those arrested for serious crimes — and for a worthy cause — Scalia said, “Sometimes the Fourth Amendment gets in the way.”

The case received additional attention from the parents and family members of crime victims who have fought for years to expand DNA searches.

Jayann and Dave Sepich have led that effort through the organization DNA Saves. Their daughter Katie was brutally raped and strangled at the age of 22 a decade ago. By the time her killer was identified through DNA evidence, he had committed other crimes.

Last year, Congress passed the Katie Sepich Enhanced DNA Collection Act, which President Obama signed in January. It creates a grants program to help states pay for the expanded system.

“It’s the right thing to do,” Obama said of taking DNA from arrestees in a 2010 appearance on America’s Most Wanted. “This is where the national registry becomes so important.”

On the other side of the debate are civil liberties advocates who worry that DNA is subject to contamination, misinterpretation, sample switches and fraud.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

————————————————————–

To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Wireless Carriers Who Aid Police Are Asked for Data

May 3, 2012

The New York Times on May 2, 2012 released the following:

“By ERIC LICHTBLAU

WASHINGTON — A leading House Democrat is demanding information from the country’s biggest cellphone companies about their role in helping local police departments conduct surveillance and tracking of suspects and others in criminal investigations.

Representative Edward J. Markey of Massachusetts, the co-chairman of the Congressional Bipartisan Privacy Caucus, said in a letter sent Wednesday to eight major wireless carriers that he was “deeply concerned” that routine tracking of cellphone use by law enforcement officials in many departments “may violate the privacy rights of Americans.”

In his letter, Mr. Markey sought data from the cellphone carriers on the number of requests for help they have received from law enforcement officials in cell tracking and surveillance operations, their policies on whether they require the authorities to secure court warrants, the use of cellphone surveillance in nonemergencies, the fees they charge the police and other information.

His letter was prompted by an April 1 article in The New York Times on the routine use of cellphone surveillance by local police departments, even in nonemergency situations. Mr. Markey’s office provided a copy of his letter to The Times.

The move by Mr. Markey puts the cellphone companies in the middle of a protracted public debate over the balance between civil liberties safeguards and the authorities’ use of surveillance technology. The issue has received renewed public attention recently as a result of a Supreme Court ruling in January finding that police use of a GPS device on a drug suspect’s car without a warrant violated his Fourth Amendment rights.

CTIA, the wireless industry trade association, said it had no comment on the Congressional request.

Ed McFadden, a spokesman for Verizon, one of the companies from which Mr. Markey is seeking information, said in a statement: “We will review the letter and be responsive. In responding to law enforcement requests, Verizon Wireless follows the law.”

An AT&T spokesman, Michael Balmoris, said, “We received the congressman’s letter and will respond accordingly.”

Representative Joe L. Barton, the Texas Republican who is co-chairman of the House privacy caucus with Mr. Markey, did not respond to requests for comment.

The privacy caucus has no formal subpoena power to gather records. But an official with the caucus who spoke on condition of anonymity in discussing internal matters said that private companies had normally complied with requests from the caucus and that Mr. Markey was confident that the cell companies would give him the information he was seeking.

Politicians and lawyers on both sides of the surveillance issue have debated where the line should be drawn between giving the authorities the technological tools they need and protecting the privacy of the public. Mr. Markey is seeking information not only on the legal and policy implications of cellphone surveillance, but also on the financial relationship between police departments and phone carriers — an area that has received little public attention.

The Times article, based on 5,500 pages of documents that the American Civil Liberties Union received from 205 police departments, found that cellphone carriers often charged local police departments anywhere from a few hundred dollars for using a cellphone to track a suspect’s location, up to $2,200 for a full-scale wiretap of a suspect.

The documents showed that police departments routinely used cellphone tracking for both emergency and nonemergency situations, sometimes without getting court warrants. With police policies varying widely, gray areas in the law have given departments wide discretion in determining what types of situations justify phone surveillance and whether court orders are needed. Some departments have even bought their own phone surveillance equipment and bypassed the carriers.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

————————————————————–

To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Supreme Court Ruling Allows Strip-Searches for Any Arrest

April 3, 2012

The New York Times on April 2, 2012 released the following:

“By ADAM LIPTAK

WASHINGTON — The Supreme Court on Monday ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.

Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs, but also public health and information about gang affiliations.

“Every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed,” Justice Kennedy wrote, adding that about 13 million people are admitted each year to the nation’s jails.

The procedures endorsed by the majority are forbidden by statute in at least 10 states and are at odds with the policies of federal authorities. According to a supporting brief filed by the American Bar Association, international human rights treaties also ban the procedures.

The federal appeals courts had been split on the question, though most of them prohibited strip-searches unless they were based on a reasonable suspicion that contraband was present. The Supreme Court did not say that strip-searches of every new arrestee were required; it ruled, rather, that the Fourth Amendment’s prohibition of unreasonable searches did not forbid them.

Daron Hall, the president of the American Correctional Association and sheriff of Davidson County, Tenn., said the association welcomed the flexibility offered by the decision. The association’s current standards discourage blanket strip-search policies.

Monday’s sharply divided decision came from a court whose ideological differences are under intense scrutiny after last week’s arguments on President Obama’s health care law. The ruling came less than two weeks after a pair of major 5-to-4 decisions on the right to counsel in plea negotiations, though there Justice Kennedy had joined the court’s liberal wing. The majority and dissenting opinions on Monday agreed that the search procedures the decision allowed — close visual inspection by a guard while naked — were more intrusive than being observed while showering, but did not involve bodily contact.

Justice Stephen G. Breyer, writing for the four dissenters, said the strip-searches the majority allowed were “a serious affront to human dignity and to individual privacy” and should be used only when there was good reason to do so.

Justice Breyer said that the Fourth Amendment should be understood to bar strip-searches of people arrested for minor offenses not involving drugs or violence, unless officials had a reasonable suspicion that they were carrying contraband.

Monday’s decision endorsed a recent trend, from appeals courts in Atlanta, San Francisco and Philadelphia, allowing strip-searches of everyone admitted to a jail’s general population. At least seven other appeals courts, on the other hand, had ruled that such searches were proper only if there was a reasonable suspicion that the arrested person had contraband.

According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.

A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration.

Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.

The case decided Monday, Florence v. County of Burlington, No. 10-945, arose from the arrest of Albert W. Florence in New Jersey in 2005. Mr. Florence was in the passenger seat of his BMW when a state trooper pulled his wife, April, over for speeding. A records search revealed an outstanding warrant for Mr. Florence’s arrest based on an unpaid fine. (The information was wrong; the fine had been paid.)

Mr. Florence was held for a week in jails in Burlington and Essex Counties, and he was strip-searched in each. There is some dispute about the details, but general agreement that he was made to stand naked in front of a guard who required him to move intimate parts of his body. The guards did not touch him.

“Turn around,” Mr. Florence, in an interview last year, recalled being told by jail officials. “Squat and cough. Spread your cheeks.”

“I consider myself a man’s man,” said Mr. Florence, a finance executive for a car dealership. “Six-three. Big guy. It was humiliating. It made me feel less than a man.”

Justice Kennedy said the most relevant precedent was Bell v. Wolfish, which was decided by a 5-to-4 vote in 1979. It allowed strip-searches of people held at the Metropolitan Correctional Center in New York after “contact visits” with outsiders.

As in the Bell case, Justice Kennedy wrote, the “undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the more invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband.”

The majority and dissenting opinions drew differing conclusions from the available information about the amount of contraband introduced into jails and how much strip-searches add to pat-downs and metal detectors.

Justice Kennedy said one person arrested for disorderly conduct in Washington State “managed to hide a lighter, tobacco, tattoo needles and other prohibited items in his rectal cavity.” Officials in San Francisco, he added, “have discovered contraband hidden in body cavities of people arrested for trespassing, public nuisance and shoplifting.”

Justice Breyer wrote that there was very little empirical support for the idea that strip-searches detect contraband that would not have been found had jail officials used less intrusive means, particularly if strip-searches were allowed when officials had a reasonable suspicion that they would find something.

For instance, in a study of 23,000 people admitted to a correctional facility in Orange County, N.Y., using that standard, there was at most one instance of contraband detected that would not otherwise have been found, Judge Breyer wrote.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Justice Breyer’s dissent.

Justice Kennedy said that strict policies deter people entering jails from even trying to smuggle contraband.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr. joined all of Justice Kennedy’s majority opinion, and Justice Clarence Thomas joined most of it.

In a concurrence, Chief Justice Roberts, quoting from an earlier decision, said that exceptions to Monday’s ruling were still possible “to ensure that we ‘not embarrass the future.’ ”

Justice Alito wrote that different rules might apply for people arrested but not held with the general population or whose detentions had “not been reviewed by a judicial officer.””

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To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


FBI Still Struggling With Supreme Court’s GPS Ruling

March 21, 2012

NPR March 21, 2012 released the following:

“by CARRIE JOHNSON

Earlier this year, the Supreme Court said police had overstepped their legal authority by planting a GPS tracker on the car of a suspected drug dealer without getting a search warrant. It seemed like another instance in a long line of cases that tests the balance between personal privacy and the needs of law enforcement.

But the decision in U.S. v. Jones set off alarm bells inside the FBI, where officials are trying to figure out whether they need to change the way they do business.

Before the Supreme Court ruling in late January, the FBI had about 3,000 GPS tracking devices in the field.

Just in case, government lawyers scrambled to get search warrants for weeks before the decision, working to convince judges they had probable cause to believe crimes were taking place.

But after the ruling, FBI officials tell NPR, agents still had to turn off 250 devices that they couldn’t turn back on.

FBI director Robert Mueller III addressed the issue this month at a House Appropriations Committee hearing. He said the ruling will change the way agents work.

“It will inhibit our ability to use this in a number of surveillances where it has been tremendously beneficial,” Mueller said. “We have a number of people in the United States whom we could not indict, there is not probable cause to indict them or to arrest them who present a threat of terrorism. … [They] may be up on the Internet, may have purchased a gun, but have taken no particular steps to take a terrorist act.”

Before the high court decision, the FBI would have deployed electronic trackers to monitor those people. Now, teams of six or eight agents have to watch them, taxing the agency’s resources.

4th Amendment In Computer Age

Andrew Weissmann is the top lawyer at the FBI. He says the Supreme Court made a distinction about the Fourth Amendment, which guards against unreasonable searches and seizures, ruling that computers that follow suspects are much more intrusive than people doing the same thing.

“The court essentially is saying that you have an expectation of privacy even though if it was done by humans there would be no violation,” Weissmann says. “But because it’s done by machines, it is.”

In the Supreme Court case, FBI agents investigating a cocaine trafficking ring secretly put a GPS tracker on a Jeep belonging to Washington, D.C., nightclub owner Antoine Jones. They kept it there for weeks, without getting approval from a judge.

“In the Jones case, the Supreme Court held that reasonable people do not expect the government to track their location by attaching a GPS device to the bottom of the car for, in that case, 28 days,” says Catherine Crump of the American Civil Liberties Union.

The full implications of the decision are still coming into focus.

A concurring opinion by Justice Samuel Alito said that a month was too long to track a suspect by GPS without a warrant, but two days would probably be fine. That leaves a big gap for law enforcement to figure out on its own.

Weissmann says FBI agents in the field need clear rules. So, for now, he’s telling agents “when in doubt, to obtain a warrant to protect your investigation.”

But he says that’s not always possible.

“And the problem with that is that a search warrant requires probable cause to be shown and many of these techniques are things that you use in order to establish probable cause,” Weissmann says. “If you require probable cause for every technique, then you are making it very very hard for law enforcement.”

Beyond GPS Devices

Government lawyers say the Supreme Court decision reaches well beyond electronic trackers.

“That decision is reverberating very quickly into areas that I’m sure lots of you care about: national security, cyber security, privacy, more generally,” said Solicitor General Don Verrilli at a recent Georgetown University Law Center conference.

The Justice Department is predicting new fights over cars that come with GPS already installed, and cameras the FBI sticks on poles to catch drug dealers and speeders.

Then there’s the big enchilada: cell phone data.

The U.S. Court of Appeals for the Fifth Circuit will hear a case this year about whether the government can get access to cell phone location data without a warrant.

You might be surprised to know it but every eight seconds or so, your cell phone can transmit information to a local cell tower signaling where you are.

Crump, of the ACLU, says that’s a lot more intrusive than putting a tracker on someone’s car.

“After all, a cell phone is something you carry with you wherever you go,” Crump says. “And we don’t think the government should be accessing that type of information without a really good reason, which they can demonstrate by getting a warrant from a judge.”

As for Antoine Jones, whose case made Supreme Court history, prosecutors say they’ll try him again — maybe using some of the location data from his cell phone.”

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To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.