A district court judge has ordered Apple to unlock a cell phone used by one of the shooters in the California massacre. Apple is fighting the order, claiming that doing so could make it easier to for anyone to hack into phones.
Apple has secret keys that can open up the software that it will not give to the FBI. The FBI also wants Apple to create a program that will permit it to hack into phones at anytime. The problem lies with a toggle in “Settings” that will make the phone delete all information on it if someone fails to put in the right passcode more than 10 times. This would make it impossible for the FBI to use a program that can guess random codes.
The case has Fourth Amendment implications for various reasons, including conscripting a private entity to become a government agent.
In class, we discuss the Fourth Amendment as it pertains to a variety of searches and seizures by government actors. Even though the New Jersey analog is practically identical to the federal Fourth Amendment, the New Jersey Supreme Court has interpreted more protections for privacy than the United States Supreme Court has under the federal amendment.
In a recent case, the New Jersey Supreme Court overturned a prior 2009 decision requiring police officers conducting an automobile search to have probable cause and exigent circumstances, such as time constraints and safety concerns, and obtain a warrant from a judge prior to the search. The court held officers now merely have to have probable cause to conduct the search–a retreat to the federal standard.
From time to time, courts will break with stare decisis when circumstances permit. The decision in this case, however, drew criticism from two of the Justices and the defense bar. Justice LaVecchia wrote in her dissent, “‘One can only wonder why the State and the majority of this Court find it appropriate to turn from the progressive approach historically taken in this State to privacy and constitutional rights of motorists.’”
But the court held the old standard was “unworkable.” Police were required to get a telephonic warrant in these circumstances; yet, many of them resorted to merely getting the owner of the vehicle to sign a “consent form” for the search instead of calling a judge.
Justice Barry T. Albin, writing for the majority held the standard applied in the 2009 decision “does not provide greater liberty or security to New Jersey’s citizens and has placed on law enforcement unrealistic and impracticable burdens.” The court found that the 2009 standard had the “unintended consequence” of causing an “‘exponential increase in police-induced consent automobile searches,’” suggesting officers may be pressuring drivers to volunteer for searches instead of taking the time to obtain a warrant.
“‘The heavy reliance on consent searches is of great concern given the historical abuses associated with such searches and the potential for future abuses,’” Justice Albin wrote.
Many companies provide workers with cell phones for company business. And they expect that their workers respect its proper use. But companies should afford their workers the same respect in terms of privacy.
In a recent report, a woman was fired for deleting an app her employer used to track her movements. She sued for invasion of privacy–a concept covered in Business Law class. Her employer used the phone to follow her off-hours, akin to a “‘prisoner’s ankle bracelet.’”
But the employer is not all wrong. As a traveling saleswoman, her employer had an interest in knowing her whereabouts, however, where they crossed the line was continuing to monitor her off-hours. Employees were not permitted to disable any GPS tracking on the phone and they had to keep it on 24/7.
Under the Fourth Amendment of the Constitution, the government is prohibited from invading someone’s privacy without probable cause and a warrant. The present case deals with the private sector, however. The woman probably had no right to delete the app, because it is company property since it is on a company phone; however, she still could have disabled the phone off-hours and not be in any trouble. Under California law, where she lives, employers are prohibited from following her in this manner when she is off-duty. Many other states have the same prohibitions.
One convenient way (and perhaps the woman in this case could have used) of stopping someone from using a cell phone as a GPS tracker is to put the cell phone in the refrigerator. Apparently, that will block the signals coming in and going out.
In Heien v. North Carolina, the Supreme Court held that where a police officer makes a stop based upon a reasonable mistake about a law, the stop is justified.
In this case, an officer stopped a vehicle because one of its two brake lights was out, based on a misunderstanding that the North Carolina law permitted only one working brake light. The officer stopped Heinen’s vehicle because one light was not working and then proceeded to a consensual search of the car. The search turned up a bag of cocaine located in a duffle bag in the trunk. Heinz was arrested and convicted of attempted drug trafficking. The question presented to the Court was whether a police officer’s reasonable mistake of law can give rise to the reasonable suspicion necessary to uphold a seizure of an automobile and the occupants in it under the Fourth Amendment.
The North Carolina statute reads that a car must be:
equipped with a stop lamp on the rear of the vehicle. The stop lamp shall display a red or amber light visible from a distance of not less than 100 feet to the rear in normal sunlight, and shall be actuated upon application of the service (foot) brake. The stop lamp may be incorporated into a unit with one or more other rear lamps. N. C. Gen. Stat. Ann. §20–129(g) (2007).
The Court concluded that the statute required only one stop lamp to be working. However, the officer was under a different impression of the law at the time. A nearby statute requires that “all originally equipped rear lamps” be functional. N. C. Gen. Stat. Ann. §20–129(d). The officer made the stop under a mistake in law. Nevertheless, the Court held that even if an officer reasonably misunderstood the law, as long as the officer conducts a search or seizure reasonably under the Fourth Amendment he is acting justifiably.
“To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them ‘fair leeway for enforcing the law in the community’s protection.’” Reasonable mistakes of fact are permissible. For example, when someone consents to the search of a home, the search will be considered valid even if the officer mistakenly believes that the person consenting is the owner.
Reasonable mistakes of law are also permissible. “Reasonable suspicion arises from the combination of an officer’s understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground.” Even laws that police enforce that are later declared unconstitutional by a court does not rebut an officer’s reasonable assumption that the laws were valid at the time.
Heinen argued that there is no margin of error for an officer’s mistake of law. He argued the legal maxim: “Ignorance of the law is no excuse.” If persons cannot get out of trouble by claiming they were mistaken about the law, then neither can the police.
But the Court concluded the law protects against only “reasonable mistakes,” and therefore, “an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.” The Court further concluded Heinen’s reliance on the legal maxim is misplaced. A person cannot escape criminal liability by claiming he did not know the law, but neither can the government impose criminal liability by a mistaken understanding of the law. The Court explained:
If the law required two working brake lights, Heien could not escape a ticket by claiming he reasonably thought he needed only one; if the law required only one, Sergeant Darisse could not issue a valid ticket by claiming he reasonably thought drivers needed two. But just because mistakes of law cannot justify either the imposition or the avoidance of criminal liability, it does not follow that they cannot justify an investigatory stop.
In this case, Heien did not appeal his brake-light ticket. Instead, he appealed a cocaine-trafficking conviction, as to which he did not claim the police made either a mistake of fact or law.
Criminal law is certainly an important part of the study of business law, and Fourth Amendment questions always seem to come up in class. Students are very interested in learning about when the police can search a person’s car, office or home, or when and where can they arrest someone. Generally, police need a warrant either to search a person’s property or to arrest, unless it falls within a constitutional exception.
Most students do not know that there is a difference between an arrest warrant and a search warrant. An arrest warrant is an order by the court directing a sheriff, constable or police officer to find and arrest a person who is wanted for a crime. In contrast, a search warrant permits a law enforcement officer to search a person’s place of residence or other location for evidence of a crime. An arrest warrant, however, does not permit the police to search a home or building for a person where the police reasonably believes the person named in the arrest warrant may be found without the consent of the owner. The question then becomes whether there are any other times police may enter certain areas of a third-party home and search for a person even though they are only acting pursuant to an arrest warrant.
In the New Jersey Appellate Division decision, State v. Craft, 425 N.J. Super. 546 (App. Div. 2012), Judge Graves held that exigent circumstances permitted the police to enter a bedroom of a third-party home to arrest defendant for a shooting even though they were operating solely under the authority of an arrest warrant. The facts are as follows.
The Newark Police Department’s Fugitive Apprehension Team is responsible to dispatch officers to certain addresses where fugitives may be found based on certain intelligence. James Craft was wanted for a shooting. Officers arrived at the location noted in the arrest warrant. It was a three-family dwelling located on South 13th Street. The police believed that defendant was residing there with family on the second-floor.
The front door to the residence was open, and the police proceeded to the second floor. The officers were in plain clothes, but at least one of them was wearing a badge around his neck. Defendant’s mother opened the door and permitted the police to enter. The officers told defendant’s mother that they had a warrant to arrest her son. Defendant’s mother told the police that her son was not there, but offered to call him on her cell phone. Upon dialing the number, the police heard a phone ringing behind a bedroom door. The officers believed it was defendant’s cell phone ringing and that he would most likely be in the bedroom.
When they opened the bedroom door, they found defendant attempting to escape. The police testified they saw defendant drop a handgun as he climbed through the window. They also discovered five vials of cocaine in plain view on the top of a dresser. Defendant was arrested and charged. The trial court suppressed the evidence finding that the “coincidence of a phone ringing” was insufficient evidence to justify entry into the bedroom without a search warrant and that the police did not have an “objectively reasonable belief” that “defendant both resided at and would be found at” his mother’s apartment.
On appeal, the court reversed, holding that “there was no constitutional violation by the police, and it was error to suppress the items that were seized. The arrest warrant provided probable cause for defendant’s arrest; the officers entered the apartment with [defendant’s mother’s consent]; and [the police] had reason to believe defendant was present in an adjoining room when a cell phone began ringing after [defendant’s mother] called her son. In addition, the officers knew the arrest warrant was for ‘a shooting’ and, therefore, defendant was potentially dangerous. Under these circumstances, there was a compelling need for immediate action to apprehend defendant, and it was impracticable for the officers to obtain a search warrant. Thus, their entry into the bedroom was objectively reasonable, and the items seized were in plain view.”
Here, the exigency to protect persons inside the home from being shot by a potentially armed individual excused the police from failing to consider the possible “coincidence” of the phone ring. According to one of the officers, upon hearing the phone ring at the time defendant’s mother dialed, he reasoned since people generally stay close to their cell phones, he would find defendant next to his. As a result, the search into the bedroom was reasonable.
