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.


Stanford Seeks to Delay Trial After Defense Expert Witnesses Quit Over Pay

January 3, 2012

Bloomberg on January 2, 2012 released the following:

“By Laurel Brubaker Calkins

R. Allen Stanford, accused of running a $7 billion investment fraud, asked for a three-month delay in his trial set for Jan. 23 after his expert witnesses quit over not being paid, according to court filings.

Stanford’s experts haven’t been paid for four months, Ali Fazel, Stanford’s lead criminal-defense lawyer, said in court papers filed Dec. 30 in federal court in Houston. They quit last week after the U.S. Court of Appeals, which controls budgets for Stanford’s publicly funded defense, ruled that it will “modify and limit the expert budget moving forward” and withhold payments to them until after the trial, Fazel said.

Stanford, 61, has been in custody since he was indicted in June 2009 on charges of defrauding investors through bogus certificates of deposit at his Antigua-based Stanford International Bank.

Stanford was declared mentally fit for trial on Dec. 22, after completing eight months of rehabilitation at a federal prison hospital in Butner, North Carolina. U.S. District Judge David Hittner found the former financier had sufficiently recovered from head injuries suffered in a September 2009 jailhouse assault and an addiction to anxiety drugs prescribed by prison doctors following the attack.

Fazel said in the Dec. 30 filings that prosecutors don’t oppose a one-week delay in tomorrow’s deadline for filing expert reports in the case.

Assistant U.S. Attorney Gregg Costa told Hittner last month that the government doesn’t oppose a delay of six to eight weeks in Stanford’s trial to give him more time to review documents with his attorneys.

Laura Sweeney, a Justice Department spokeswoman, declined to comment today on the request for a three-month delay, citing a gag order issued by the judge.

The case is U.S. v. Stanford, 09-cr-00342, U.S. District Court, Southern District of Texas (Houston).”

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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 McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.