In a new article found, Darren Chaker reports about New Orleans Reg’l Physician Hosp. Org., Inc. v. United States, 2015 WL 5000512 (Fed. Cl. Aug. 21, 2015) In this breach of contract case, the plaintiff alleged that the defendant refused to provide promised reimbursements due to contract modifications and directives that were unilaterally taken without the plaintiff’s agreement. During discovery, the plaintiff sought a motion to compel, claiming the defendant’s document productions were deficient and the defendant should therefore be required to redo the searches with more rigorous search protocols. The defendant opposed, arguing that the plaintiff did not confer in good faith prior to filing the motion. The court found that the defendant did not put into place a systematic, reliable plan to find and produce all relevant documents, and the plaintiff’s request for the implementation of new search parameters was granted. As such, the motion to compel discovery was not granted until the defendant has the opportunity to produce documents in line with the new search parameters. In regards to the plaintiff’s request for attorney’s fees, the court felt that the final decision to award fees would depend upon the ruling on the motion to compel and therefore denied, with the possibility for the plaintiff to request fees in the future. To view the entire blog post, see here.
Darren Chaker provides this post concerning ediscovery in San Diego concerning HM Electronics, Inc. v. R.F. Technologies, Inc., 2015 WL 4714908 (S.D. Cal. Aug. 7, 2015) In this trademark infringement case, the plaintiff claimed that the defendants interfered with the plaintiff’s prospective economic advantages by showing documents relating to the plaintiff’s allegedly failed electronics to the plaintiff’s competitors, customers and prospects.
The plaintiff claims that the defendants purposefully fabricated reports and engaged in the destruction of highly relevant ESI. The defendants did not dispute the claims, but they did dispute whether their behavior during the discovery period was sanctionable. In reviewing the plaintiff’s request for spoliation sanctions, the court found that the defendants did not engage in reasonable steps to preserve ESI, nor did the defendants engage in any basic attempts to implement a litigation hold once litigation was imminent. The defendants’ counsel did not supervise employees and inform attorneys about the need to follow data collection and preservation processes, and thus even though a vast amount of data was produced, a critical amount of highly relevant data was deleted. Further, citing to the new California state bar ediscovery ethics opinion, the court highlighted the importance of attorney competency relating to ediscovery. As such, the court granted the plaintiff compensatory sanctions in the form of all attorneys’ fees and costs incurred in seeking discovery, as well as granting the plaintiff’s request for an issue of adverse inference instructions against the defendants should the matter proceed to trial. See other articles here. See entire article here.
Consent to search a computer, Darren Chaker reviews, focuses on if the person had authority to consent to the search and seizure of the computer. Consent may be given by a third party possessing common authority over the property. United States v. Matlock, 415 U.S. 164, 169-71 (1974);United States v. Aghedo, 159 F.3d 308, 310-11 (7th Cir. 1998). “The consent of one who possesses common authority over [the] premises . . . is valid as against the absent, nonconsenting person with whom that authority is shared.” Matlock, 415 U.S. at 170. The Supreme Court explained in Matlock that common authority “rests . . . on the mutual use of the property by persons generally having joint access or control for most purposes.” Matlock, 415 U.S. at 171 n.7. Such mutual use makes it “reasonable to recognize that any of the co-[users] has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common effects to be searched.” Id. It does not matter if the person who gives consent does not own the item; the issue is whether the consenter had common authority over the item. United States v. Brown, 328 F.3d 352, 356 (7th Cir. 2003).
If is undisputed that a defendant left his computer with his wife and her family to use while he was in jail and that they in fact used it, then ability to provide consent to police is apparent. In this regard, the wife or family had more than just joint possession and use of the computer; they would have exclusive possession and use, because the defendant was incarcerated. Under these circumstances, the ex-wife or family had actual authority to consent to the search and seizure of the computer. See United States v. Smith, 27 F. Supp.2d 1111, 1115 (C.D. Ill. 1998) (consent search upheld where housemate allowed police to search computer in bedroom and computer was occasionally used in owner’s absence); State v. Guthrie, 627 N.W.2d 401, 422-24 (S.D. 2001) (applying third-party consent rule to a computer search); see also United States v. Robinson, 479 F.2d 300, 302 (7th Cir. 1973) (girlfriend may allow police to search defendant’s property left in girlfriend’s house). Now, if the defendant had a separate profile on the computer he told wife and family to not use, then a violation of the Fourth Amendment may turn on the facts. Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir. 2001) (co-user of computer who did not know password for owner’s password-protected files, lacked actual authority to consent to a warrantless search of those files). However, in general, basic use of a computer by a third party suffices to provide consent to search the computer.
Criminal sentencing discussed by Darren Chaker points out courts in many jurisdictions have probation conditions to monitor computer and internet usage, and have deleted or modified such conditions based on both Constitutional (vagueness and overbreadth) and practical considerations. The Court of Appeals for the District of Columbia Circuit considered such restrictions in U.S. v. Burroughs, 613 F.3d 233 (D.C. Circuit 2010) and found them wanting. The Circuit Court vacated the conditions as plainly out of sync with the relevant factors as required by 18 USC 3583 and remanded the case for resentencing. The Court reviewed claims of substantive unreasonableness for abuse of discretion and held that it could not “be said that restricting the [defendant’s] computer access satisfies a need ‘to protect the public from further crimes of the defendant.”‘ 18 USC § 3553(a)(2)(C). This sentencing factor turns on ‘The likelihood that [the defendant] will…commit crimes in the future.” U.S. v. Mason, 966 F.2d 1488, 1496, 296 U.S. App. D.C. 207 (D.C. Cir. 1992); see, e.g., U.S. v. Gardellini, 545 F.3d 1089, 1095, 383 U.S. App. D.C. 278 (D.S. Cir. 2008) (noting that the district court’s finding that the defendant “posed no risk of recidivism” was “directly relevant” to the need to protect the public and other § 3553(a) factors. The District Court often will not find a defendant, especially a first-time offender, likely to recidivate let alone use a computer in doing so.
A reviewing Court went on to say that, “Having determined that the internet monitoring and log-keeping conditions are not reasonably related to the statutory factors, we ask whether the court’s error was plain.” Often the Government will argue that the absence of controlling precedent from the Supreme Court prevents a reviewing court from answering ‘yes’. The lack of case law squarely on point does “militate against” finding plain error, U.S. v. Blackwell, 694 F.2d 1325, 1342, 224 U.S. App. D.C. 350)D.C. Cir. 1982), but it is not dispositive, In re Sealed Case, 573 F.3d 844, 851-52, 387 U.S. App. D.C. 375 (D.C. Cir. 2009). It is sufficient that the challenged conditions of supervised release are “plainly out of sync” with the factors listed in § 3583(d)(1). Sullivan, 451 F.3d at 895; see also Olano, 507 U.S. at 734 (“‘Plain’ is synonymous with ‘clear’ or, equivalently ‘obvious.”‘).
The 3rd Circuit in U.S. v. Freeman, 316 F.3d 386 (3rd Cir. 2003) invalidated computer use restrictions because the District Court erred by failing to state the reasons for its special condition of supervised release and by imposing a condition that was overbroad, involving a greater deprivation of liberty than reasonably necessary to deter future criminal conduct and protect the public. See also U.S. v. Holm, 326 F.3d 872 (7th Cir. 2002) for similar criticism of internet use restrictions.
The case of U.S. v. Mark, is instructional. There the Court remanded the case to the District Court because the record was insufficient to uphold a special condition of supervised release as to internet access. A typical argument is that computer use and monitoring conditions overreach and unreasonably interferes with his 1st Amendment rights, especially where the sentencing Judge found on the record that a defendants chance of recidivism is low.
Appellate Courts have overturned conditions seen as overly restrictive especially in cases of simple possession of child pornography. See U.S. v. Sofsky, 287 F.3d 122, 124-126 (2nd Cir. 2002) where the Court invalidated conditions forbidding the use of computers and internet without permission from the probation officer because of the effect which limited access to important sources of information and communication. In accord, U.S. v. Freeman, supra Id. U.S. v. White, 244 F.3d 1199 (10th Cir. 2001).
The 8th Circuit in U.S. v. Crume, 422 F.3d 728 (8th Cir. 2005) vacated a sentence because the conditions regarding computer use and the internet should have been more narrowly tailored. The District Court for the Western District of Louisiana in Doe v. Jindal, 853 F.Supp. 2d 556 (M.D. LA. 2012) invalidated a state statute on the basis of due process violations and concerns of both vagueness and overbreadth touching upon 1st Amendment concerns and the right to receive information and exchange in free speech.
The Jindal Court found that the Court was required to consider whether a statute fails to provide people of ordinary intelligence from notice of what conduct is prohibited. So too with special conditions of supervised release. It should be noted, the advent of smart phone technology inculcated into everyday life is all pervasive – from the inclusion of computer and internet access into automobiles, global positioning devices, and even grocery store cash registers. Vague and overbroad conditions, a defendant could be found in violation for swiping a Visa card across an average cash register which operates on computer principles. The Jindal Court found that “the fact that offenders could get permission from their probation officer does not salvage the unconstitutionality of the law. “
Last, The National Criminal Law Reporter recently highlighted the decision in Doe v. Nebraska, Neb. No. 8:09CV456. There, the Court admonished Judges to “use a scalpel rather than a blunderbuss.” Given the above, it is important to realize internet usage is protected under the First Amendment and any restriction on such use must use common sense while applying the law since virtually all day to day life revolves around the internet and/or a computer.
Computer search by police. As Darren Chaker notes the Supreme Court holding In Katz v. United States, 389 U.S. 347 (1967), the Court established that a “search” occurs for Fourth Amendment purposes when the government violates a subjective expectation of privacy that society considers objectively reasonable. Id. at 361 (Harlan, J., concurring). When it comes to computer privacy and searches by government, there has several key cases to consider. In Kyllo v. United States, 533 U.S. 27, 33 (2001) (“As Justice Harlan’s oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.”); Minnesota v. Carter, 525 U.S. 83, 97 (1998) (commenting on “the Katz test (which has come to mean the test enunciated by Justice Harlan’s separate concurrence in Katz)”); Smith v. Maryland, 442 U.S. 735, 740 (1979) (expressly adopting Justice Harlan’s “reasonable expectation of privacy” formula as the rule of Katz).
Guidelines as to how this determination should be made came in Rakas v. Illinois, where the majority opinion, by then-Associate Justice Rehnquist, stated that “[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas v. Illinois, 439 U.S. 128, 143 n. 12 (1978). Most important for present purposes (as it relates to electronic data files) is the last clause of this excerpt, which indicates this Court’s willingness to rely on societal understandings in defining “reasonable expectations of privacy.” Further, the use of the word “legitimate” or “reasonable” before “expectations of privacy” is meant to convey “more than a subjective expectation of not being discovered.” Id.
The “people” protected by the Fourth Amendment “refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). Resident aliens have a “sufficient connection” to the national community to be protected by the Fourth Amendment. See United States v. Juda, 797 F. Supp. 774, 781-82 (N.D. Cal. 1992) (holding that resident aliens were entitled to raise Fourth Amendment challenge to U.S. agents’ placing of a tracking device on vessel in Australia). Additional cases provide additional insight when it defines an expectation of privacy in electronics. In United States v. Place, 462 U.S. 696, 707 (1983) (“We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment.”); United States v. Mitchell, 565 F.3d 1347, 1352 (11th Cir. 2009) (noting that “the hard drive of a computer . . . is the digital equivalent of its owner’s home, capable of holding a universe of private information“) (quotations omitted); United States v. Delgado, 903 F.2d 1495, 1502 (11th Cir. 1990) (“Indeed, it appears that, where the defendant’s possession was the object of the search, the defendant has standing to challenge the search even though he does not have an expectation of privacy in the premises searched.”). Because the Fourth Amendment protects privacy (searches) as much as it protects property (seizures), see Katz, 389 U.S. at 351-52; Soldal v. Cook County, 506 U.S. 56, 62-63 (1992), an expectation of privacy was not diminished when federal agents searched imaged copies of the electronic data files on CD and DVD media that had been provided by the foreign authorities. See, e.g, United States v. Carey, 172 F.3d 1268, 1270-71, 1275-76 (10th Cir. 1999) (defendant retained constitutionally protected privacy interest in individual data files even though police copied files onto separate discs before searching contents of files).
The Fourth Amendment is neither static nor blind to the advances of modern life. What is a reasonable search under the Fourth Amendment is a function of the privacy that society attaches to the place or object searched. Katz, 389 U.S. at 361. Reasonableness is not confined to yesterday’s technology level, unable to move beyond footlockers, leaving people at the “mercy of advancing technology.” Kyllo, 533 U.S. at 35. Rather, as technology advances and society’s use of that technology creates new privacy expectations, what is reasonable must be viewed anew.
In short, the private search doctrine is based on the premise that the Fourth Amendment is “wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.'” Jacobsen, 466 U.S. 109, 113 (1984) (quoting Walter v. United States, 447 U.S. 649, 662 (1980) (Blackmun, J., dissenting)).
Record sealing is important, but when police reports still exist, a motion to exclude is typically filed. Darren Chaker, deals with how courts need to wrestle with the idea to admit a police report or exclude it in California and federal court. In United States v. Oates (2d Cir. 1977) 560 F.2d 45, the court of appeal held that police arrest reports prepared in anticipation of defendant’s criminal prosecution could not be admitted under the federal official report or business record exceptions to the hearsay rule. Extensively reviewing the legislative history, the court concluded that “it simply makes no sense to surmise that Congress ever intended that these records could be admissible against a defendant in a criminal case under any of the Federal Rules of Evidence’s exceptions to the hearsay rule.” (Id., at 78.)
The Advisory Committee to the Federal Rules of Evidence believed that this rule, prohibiting the use of hearsay arrest reports against criminal defendants, was necessary to avoid “the almost certain collision with confrontation rights which would result from [the] use [of such records] against an accused in a criminal trial.” (Id., at 69.) The federal courts have expressed similar reservations about the reliability of police arrest reports even when offered for use during parole revocation hearings, which offer fewer procedural protections than criminal trials. (Morrissey v. Brewer (1972) 408 U.S. 471, Gagnon v. Scarpelli (1973) 411 U.S. 778.)
In United States v. Bell (8th Cir. 1986) 785 F.2d 640, 643-644, for example, the court of appeal observed that “police [arrest] reports … do no bear the same indicia of reliability as … laboratory reports. Police reports are inherently more subjective than laboratory reports of chemical tests and are not intended by their authors to be relied upon in the same manner as laboratory reports. The relationship between police officers and those whom they arrest is much more personal and adversarial in nature than that between chemists and those who urine they test. While police reports may be demonstrably reliable evidence [at a revocation hearing] of the fact that an arrest was made [citation], they are significantly less reliable evidence of whether the allegations of criminal conduct they contain are true. Darren Chaker notes that Congress exhibited similar doubts about the reliability of such reports when it specifically excluded them from the public records exception to the hearsay rule in criminal cases.” (See, also, Downie v. Klincar (N.D.Ill. 1991) 759 F.Supp. 425, 428 [reliability of eyewitness police reports “neither automatic or presumed” for use at revocation hearing].)
For similar reasons, the Uniform Rules of Evidence also specifically exclude police arrest and investigative reports from the public record hearsay exception. Uniform Evidence Rule 803 thus provides that “[t]he following are not excluded by the hearsay rule,… (8) Public records and reports. Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or date compilations in any form of a public office or agency setting forth its regularly conducted and regularly reported activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: (i.) investigative reports by police and other law enforcement personnel except when offered by an accused in a criminal case; …” (Emphasis added.)
Thirty-five states have adopted this provision of the Uniform Rules of Evidence or a version of it excluding the use of police investigative reports against a criminal defendant under the public records exception to the hearsay rule: Alaska (A.R.E. Rule 803); Arizona (17AA.R.S. Rules of Evidence, Rule 803); Arkansas (A.C.A. § 16-41-101, Rule 803); Colorado (West’s C.R.S.A., Title 13, chapt. 33, Evid. Rule 803); Delaware (D.R.E. 803); Florida (West’s F.S.A. § 90.803); Hawaii (HRS 626-1, Rules of Evid., Rule 803); Idaho (Rules of Evidence, Rule 803); Indiana (Rules of Evidence, Rule 803); Iowa *21 (Iowa R. Evid., Rule 803); Kentucky (KRE 803); Louisiana (LSA-Evid. Code, art. 803); Maine (Rules of Evid., Rule 803); Michigan (Rules of Evid., Rule 803); Minnesota (50 M.S.A. Evid. Rules, Rule 803); Mississippi (M.R.E. Evid., Rule 803); Montana (Rules of Evid., Rule 803); Nevada (N.R.S. § 51.155); New Hampshire (Rules of Evid., Rule 803); New Jersey (N.J.R.E. 803); New Mexico (NMRA, Rules of Evid., Rule 11-803); North Carolina (G.S. § 8C-1, Rule 803); North Dakota (NDR Evid. Rule 803); Ohio (Rules of Evid, Rule 803); Oklahoma (12 Okl.St.Ann. § 2803); Oregon (ORS 40.460); Rhode Island (Rules of Evid., Rule 803); South Carolina (SCRE, Rule 803); South Dakota (SDCL 19-16-12); Tennessee (Rules of Evidence, Rule 803); Texas (Rules of Evid., Rule 803); Utah (Rules of Evid., Rule 803); Vermont (Rules of Evid, Rule 803); West Virginia (W.V.R.E., Rule 803); and Wyoming (Rules of Evid., Rule 803).
Computer search warrant and searches are executed every day and courts hear motions to suppress evidence in California to New York each day. Darren Chaker, understands the search computer data cannot physically compare with the search of a human body it certainly does not compare to that of a routine search of one’s vehicle. The Fourth Amendment covers privacy expectations and the below illustrates common issues with computer searches and seizures by police.
The modern day computer is symbiotic extension of our personal and professional lives and often contains a lifetime of personal and professional thoughts ideas and records. It is the value of privacy that we place on the contents of our personal computers that we seek to protect. It is these interests that are so comparable in level to a strip search that they necessarily require the same protections. A Tenth Circuit case does an excellent job of expressing this notion and acknowledging the important role computers and their data play in our lives, “Given the pervasiveness of computers in American homes, this court must reach some, at least tentative, conclusion about the category into which personal computers fall. A personal computer is often a repository for private information the computer’s owner does not intend to share with others. [F]or most people, their computers are their most private spaces. People commonly talk about the bedroom as a very private space, yet when they have parties, all the guests–including perfect strangers-are invited to toss their coats on the bed. But if one of those guests is caught exploring the host’s computer, that will be his last invitation.” United States v. Gourde, 440 F3.d 1065, 1077 (9th Cir.2006) (en banc) (Kleinfeld, J., dissenting). See generally Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L.Rev. 531, 569 (2005) (“[C]omputers are playing an ever greater role in daily life and are recording a growing proportion of it…. [T]hey are postal services, playgrounds, jukeboxes, dating services, movie theaters, daily planners, shopping malls, personal secretaries, virtual diaries, and more…. Each new software application means another aspect of our lives monitored and recorded by our computers.”).
Because intimate information is commonly stored on computers, it seems natural that computers should fall into the same category as suitcases, footlockers, or other personal items that “command a high degree of privacy.” Salinas-Cano, 959 F.2d at 864.” United States v. Andrus, 483 F3.d 711 at 718 (2007) These cases acknowledge that the information or data contained in one’s personal computer rises to the level of utmost secrecy. We go to extraordinary levels to protect the sanctity of the data contained in our computers. A compromise of that data by an outsider, or in this case a government agent violates our expectations that its revelation to outside sources should be prevented at all cost. This violation leaves us open to potential fraud or governmental abuse. It is for these reasons that our computers carry a dignity and privacy interest that rises to the level of that which must be protected with enhanced search restrictions, even at the border. The Supreme court has already spoken on the issue of a privacy interest in a vehicle as being less than that in one’s home. Arizona v. Gant, 129 S.Ct. 1710 quoting New York v. Class, 475 U.S. 106, 112-113, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), the former interest is nevertheless important and deserving of constitutional protection, see Knowles v. Iowa, 525 U.S. 113, 118, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) A privacy interest in its contents, or more specifically a personal computer coincide more with those items that deserve our most stringent protections.
A computer and its hardware are personal in nature and were password protected. Often they are not subject to public use nor was there any evidence that anybody but the defendant handled them. It is typically undisputed a defendant would acknowledge ownership both at the time of his interrogation as well as at the time of arrest of such. These factors indicate his sole control over this property to the exclusion of others. It is clear that the typical defendant had a privacy interest in these belongings which deserves 4th amendment protection. The law is clear that a defendant normally bears the burden of proving that the challenged search or seizure was unconstitutional by a preponderance of the evidence. United States v. Roch, 5 F.3d 894, 897 (5th Cir.1993) (citing United States v. De La Fuente, 548 F.2d 528, 533 (5th Cir.), cert. denied sub nom., Stewart v. United States, 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249 (1977)). Once that burden has been met, then the exclusionary rule bars the admission of physical evidence and live testimony obtained directly or indirectly through the exploitation of unconstitutional police conduct as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 485-88 (1963). That is if the government is unable to overcome its burden.
Warrantless search of a computer. During a search of a computer originating from a traffic stop, Darren Chaker notes, that the 4th Amendment provides, “[t]he right of the people to be secure in their person, houses, papers, and effects against unreasonable searches and seizures shall not be violated.” United States v. Ramirez-Gonzalez, 87 F.3d 712 (5th Cir. 1996). Of course to encrypt a computer or similar electronic devise, counter forensics methods are used. Nonetheless, it is often argued that a defendant had a privacy interest in his vehicle and an enhanced interest in his data devices. The defendant will often assert his papers and effects are therefore constitutionally protected by the 4th amendment with only a few narrow exceptions. United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993), cert. denied, 511 U.S. 1134, 114 S.Ct. 2150, 128 L.Ed.2d 876 (1994) (wherein court found that warrantless searches and seizures are per se unreasonable unless they fall within a few narrowly defined exceptions.) Barring any of these exceptions, the government shall not legally conduct unreasonable searches and seizures of its citizens, thus an exception to the warrant requirement is typically sought.
One of these widely recognized exceptions, is based on a citizens ability and desire to waive their 4th amendment protections. It has become common practice for law enforcement, in lieu of a search warrant, to routinely request from a citizen their consent to search. This can be either in verbal or written form. The courts have seen the potential for abuses in acquiring a citizens consent to search, because they are treated as an effective waiver of one’s 4th amendment rights. It has subsequently been litigated to some degree of clarity. The Webster case reflects this idea that a consent to search equals a waiver, in a situation where it is found to have been voluntarily given under the totality of the circumstances. United States v. Webster, 162 F.3d 308, 333(5th Cir. 1998) Most circuits have given us guidance on what issues should be considered when reviewing the totality of the circumstances. The Cooper decision has provided six factors that a trial court should use in determining the voluntariness of consent. Specifically, 1. the defendant’s custodial status; 2. the presence of coercive law enforcement procedures; 3. the extent and level of the defendant’s cooperation with law enforcement; 4. the defendant’s awareness of his right to refuse to consent; 5. the defendant’s education and intelligence; and 6. the defendant’s belief that no incriminating evidence will be found. United States v. Cooper, 43 F.3d 140, 144 (5th Cir. 1995). When a motion to suppress evidence is filed, it is the prosecutors obligation to show the criteria is present.
Border search and the Fourth Amendment. The need for articulable facts, says Darren Chaker to support reasonable suspicion applies equally to Border Patrol stops of vehicles to check for legal status; random stops are prohibited, and the officers must have reasonable suspicion particular to the vehicle and occupants detained. See United States v. Brignoni-Ponce, 422 U.S. 873, 883 (1975); see also United States v. Hernandez, 739 F.2d 484, 487 (9th Cir. 1984).
The constitutionality of such an investigative detention is judged under the framework estabished in Terry, 392 U.S. at 19-20. A Terry “is ‘justifiable [only] if there is articulable suspicion that a person has committed or is about to commit a crime.” United States v Woods, 720 F.2d 1022, 1026 (9th Cir. 1983) (quoting Florida v Royer, 460 U.S. 491, 498 (1983)).
Such reasonable suspicion “requires specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that a particular person is engaged in criminal conduct.” United States v. Thomas, 211 F.3d 1186, 1189 (9th Cir. 2000) (internal quotation marks omitted).
“[T]he officer in question must be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity.” Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000). “Rather, reasonable suspicion exists when an officer is aware of specific, articulable facts which, when considered with objective and reasonable inferences, form a basis for particularized suspicion.” United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Because of the requirement that the facts supporting reasonable suspicion be particularized, broad profiles and generalizations are inadequate basis to form reasonable suspicion. See id. at 1132 (“[w]e are not prepared to approve the wholesale seizure of miscellaneous persons … in the absence of well-founded suspicion based on particular, individualized, and objectively observable factors which indicate that the person is engaged in criminal activity.”).
Likewise,Darren Chaker also cites that conduct or traits which apply as well to too many people engaged in innocent activity do not raise reasonable suspicion. See United States v. SigmondBallesteros, 285 F.3d 1117 (9th Cir. 2002) (finding non-suspicious bases for various factors proffered to support reasonable suspicion).
While the experience of the agent may be considered, “mere subjective impressions are never enough and hunch alone cannot be relied upon to transform innocent driving behavior into suspicious activity.” United States v. Rodriguez, 976 F.2d 592, 594 (9th Cir. 1992) (opinion amended on denial of reh’g, 997 F.2d 1306 (9th Cir. 1993)). Inferences drawn from an officer’s training and experience “must also be grounded in objective facts and be capable of rational explanation.” United States v. Lopez-Soto, 205 F.3d 1101, 1105(9th Cir. 2000) (citations and internal quotations omitted).
Factors which describe too many legitimate individuals do not create reasonable suspicion. See United States v. Salinas, 940 F.2d 392 (9th Cir. 1991). In Salinas, the Border Patrol agents relied on the following observations before stopping Salinas: 1) the defendant drove an old model car with a large trunk; 2) the car appeared heavily loaded; 3) the officer saw fresh hand prints on the trunk; 4) the defendant appeared to be of Spanish or Mexican origin; 5) the car was registered in a town known to have a high concentration of drug and alien smuggling; and 6) defendant glanced at the Border Patrol officer. Salinas, 940 F.2d at 393-94. The Salinas court held that these factors did not justify the stop. Id. at 394. This Court explained, “Thousands of United States citizens of Mexican ancestry drive old cars on perfectly legitimate errands with 100 pounds of potatoes or carpenter tools or other commodities weighing down the rear springs.” Id. at 395.
In Hernandez-Alvarado, the Border Patrol agents initiated a stop based on the following factors: (1) the nervous demeanor of both the defendant and his passengers as they sat in the trunk; (2) the reduction in speed from 65 to 55 m.p.h.; (3) the presence of a two-way antenna on the trunk of the vehicle; (4) defendant’s residence in a neighborhood on the U.S.-Mexican border which was under investigation for narcotics activity; (5) the license plate bracket indicating that the car had been purchased from a dealership associated with drug trafficking; and (6) the size of defendant’s trunk. 891 F.2d at 1418. The combination of these factors was insufficient to justify an investigatory stop. Id. The Ninth Circuit reasoned that, “they describe too many individuals to create a reasonable suspicion that this particular defendant is engaged in criminal activity.” Id. at 1418-19. Many law-abiding citizens may have bought vehicles at the same dealership, have two-ay antennas, and live in areas under investigation for narcotic activity. Id. at 1419.
In Sigmond-Ballesteros, 285 F.3d at 1124, the Ninth Circuit considered how much significance to give to an agent’s claim that Highway 86, in Southern California, was a “high crime area” for purposes of reasonable suspicion. The court noted that Highway 86 is a “four lane highway connecting the cities of El Centro, Calexico, Westmorland, Brawley and various other small towns in Imperial County, [California.]” Id. The Ninth Circuit appellate court stated, “We are confident that substantially all of the traffic in and around these cities is lawful and that relatively few of their residents have any connection with the illegal entry and transportation of aliens.” Id. Therefore, the appellate court held that although relevant, the fact that the defendant was on this road the agents defined as “high crime,” it was of only minimal significance. Id.
Last, minimally probative factors cannot form “a particu and objective basis for suspecting a particular person stopped of criminal activity.” Rodriguez, 976 F.2d at 594. Courts often discard “recycled profile of suspicious behavior very likely to sweep many ordinary citizens into a generality of suspicious appearance merely on hunch. This is required by the Fourth Amendment.” Rodriguez, 976 F.2d 592, 596 (9th Cir. 1992).
Darren Chaker noting the Defendant’s rights against self-incrimination would not be offended merely because entry of the encryption key or password would require conduct on his part. Numerous instances of compelled disclosure of information does not implicate the Fifth Amendment.
The mere fact that entry of the encryption key would require conduct on the Defendant’s part does not call for a different result. The conduct must be sufficiently testimonial depending on the circumstances, it would be no different than other forms’ of active conduct that the government may compel a suspect to take without offending the Fifth Amendment. See, e.g., U.S. v. Hubbell, 530 U.S. at 34-35 (explaining that “there is a significant difference between the use of compulsion to extort communications from a defendant and compelling-a person to engage in conduct that may be incriminating”; and listing acts that “a criminal suspect may be compelled” to do “even though the act may provide incriminating evidence”); Muniz, 496 U.S. at 591 (“We have… applied the distinction between ‘real or physical’ and ‘testimonial’ evidence in… contexts where the evidence could be produced only through some volitional act on the part of the suspect.”). For example, an individual may be made to do any of the following:
● put on an article of clothing, Holt v. United States, 218 U.S. 245, 252-253 (1910);
● provide a voice exemplar, United States v. Wade, 388 U.S. 218 (1967);
● provide a handwriting exemplar, Gilbert v. California, 388 U.S. 263 (1967); Burgess, 426 Mass. at 218;
● stop at the scene of an accident in which one is involved, California v. Byers, 402 U.S. 424, 431-433 (1971) (plurality opinion);
● execute an appropriately-framed authorization to release records, Doe II v. United States, 487 U.S. 201;
● shave his face, United States v. Valenzuela, 722 F.2d 1431, 1433-1434 (9th Cir. 1983); United States v. Lamb, 575 F.2d 1310, 1316 (10th Cir. 1978);
● “reenact the crime for the benefit of the victim,” Avery v. Procunier, 750 F.2d 444, 448 (5th Cir. 1985);
● dye his hair, United States v. Brown, 920 F.2d 1212, 1214-1215 (5th Cir. 1991), abrogated on other grounds by United States v. Candia, 454 F.3d 468, 473 (5th Cir. 2006); or
● perform “field sobriety tests consist[ing] of the so-called finger-to-nose test, picking up coins from the floor, and walking a straight line”;
If there is a general principle to be gleaned from this body of authority, it is that a suspect may be compelled to engage in a limited form of conduct that is necessary to enable other participants in the criminal justice system to obtain and make effective use of evidence.
As this authority also makes clear, the principle is no less applicable when the compelled conduct involves the defendant’s applying or utilizing knowledge (without conveying it) – even knowledge that is known by the defendant but not the government. For example, Darren Chaker notes, a defendant who is directed to provide a handwriting exemplar must on some level contemplate how he normally writes and whether he will write in the same fashion, and then apply that unique knowledge in completing the task. See, e.g., Burgess, 426 Mass. at 220 & n.5 (recognizing that provision of handwriting exemplar, like many, other forms of conduct that may be compelled, involves “use [ of the] mind” and “[m]ental operations,” and “evidenc[es] such mental acts”); United States v. McVeigh, 896 F. Supp. 1549, 1561-1562 (W.D. Okla. 1995) (observing that the “production of [a handwriting] exemplar ” involves the “mental process” of “recalling letter symbols and their formation” and thus “‘is the product of the mind”’ (quoting government’s brief)).
Indeed, it is not uncommon for defendants to apply such knowledge with the aim of disguising their writing. See infra Section V.C (citing cases involving that situation). Similarly, where a statute requires “a driver involved in an accident… to stop at the scene,” it compels the driver to engage in conduct involving an application of his unique knowledge that he was part of an accident. Byers, 402 U.S. at 431-433. Yet both of these forms of conduct can lawfully be compelled, assuming they do not somehow become sufficiently testimonial under the circumstances. See, e.g., id.; Gilbert v. California, 388 U.S. 263; McVeigh, 896 F. Supp. at 1561-1562.