Kanovitz: Constitutional Law, 13th Edition


Case Studies

Chapter 5: Laws Governing Police Surveillance

Case 1

Janie Smith headed up a criminal ring in Sometown. This ring had been responsible for the rise in drug-related activity and prostitution in the town, and yet because Smith ran a tight and efficient operation, police have no evidence tying her directly to her crimes. Every time the police thought they had gotten close to Janie, she slipped through their grasp. Or had, until police caught up to Cynthia Stout. Police in Coppertown had caught Stout with enough cocaine to put her away for 20 years. However, Stout offered to give them Janie Smith in exchange for a lighter sentence, and so she began to work with the Sometown police department.
Stout agreed to become a police informant and wear a state-of-the-art tiny video camera to her meetings with Smith about an upcoming drug shipment. The police would use the video to obtain an arrest warrant and charge Janie Smith with drug trafficking. Stout’s meeting was to be held in the private offices of a local businessman who had ties to the underworld. Stout went to the meeting, and there Smith described how representatives of the ring planned to meet a truck that would come in to an abandoned warehouse along the Winding River, on the outskirts of Sometown. The truck would contain 20 kilos of cocaine, along with some marijuana. Smith instructed Stout to meet up with her associate after the drop was made.
Sometown police used this information to intercept the drug shipment and then to arrest Janie Smith on drug trafficking charges as she was attempting to flee Sometown.

Questions

  1. The incriminating statements made by Janie Smith were spoken in a private office of a local businessman, a space protected by the Fourth Amendment. Why was the evidence allowed at Janie Smith’s trial?

    Correct Answer

    The statements made by Janie Smith were admissible at trial because Cynthia Stout was a consenting informant in exchange for a lighter sentence. Police do not need a search warrant to conduct secret surveillance of contacts between a suspect and a cooperating informant. Because the informant could have reported everything said and done in his presence from memory, conducting such surveillance does not violate the Fourth Amendment.

  2. What are the Supreme Court decisions that factor into allowing such evidence, and what is the doctrine called that justifies it?

    Correct Answer

    In Hoffa v. United States, the Supreme Court ruled that the Fourth Amendment does not protect “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” In United States v. White, the Court applied this principle to the electronic monitoring of conversations between the defendant and a consenting informant.
    The doctrine that governs this type of surveillance is known as the Hoffa doctrine, after Hoffa v. United States.


  3. What kind of authorization would the police have had to obtain to record the conversation between Janie Smith and her gang, had it not been for Cynthia Stout’s cooperation?

    Correct Answer

    Had it not been for Cynthia Stout’s cooperation, the police would have required a search warrant to record the meeting. The meeting was held in a private office, where suspects have a reasonable expectation of privacy.

Case 2

Joe Staples is well-known in Sometown for his marijuana. Several students from Sometown High School have recently been arrested for marijuana possession, but none of them have been willing to identify their source. Officers at the Sometown Police Department have had their eye on Staples for years, but they just have not been able to catch him in the act. They strongly suspect that Staples has been growing marijuana in the back of his house, using heat lamps. However, they have been unable to gather enough evidence for a search warrant for his home. After the drug busts involving Sometown High School students, the police decide to get serious about catching him.
It just so happened that the department had recently acquired a thermal detector to crack down on home-grown marijuana operations. The police decided that it was time to try it out. Late in the evening, police officers snuck into a wooded area behind Staples’ property and installed the detector. For several days, officers monitored the heat signature coming from Staples’s home and determined that the heat coming from his home could only be coming from a marijuana growing operation. Now it was just a matter of catching Joe Staples leaving his home.
Unfortunately, Joe Staples was a bit of a homebody, and he did not leave his house very often. A few people came and left his house, but the police let them go, not wanting to alert Staples to their plans to arrest him. Finally, Staples left the house. As soon as he was down the driveway and onto the sidewalk, the police arrested him for an illegal marijuana growing operation.

Questions

  1. What is the Fourth Amendment requirement for the thermal detecting devices, and were the police justified in using it to monitor Joe Staples’s marijuana growing operation? Did the fact that the police set up their equipment off of his property influence whether this surveillance was constitutional?

    Correct Answer

    Joe Staples’s marijuana growing operation was in his home. Because people have a reasonable expectation of privacy within their own homes, a search warrant is required to use thermal detecting devices. Even though the police set up the equipment in the woods and not on Staples’ property, a warrant is still required.

  2. What Supreme Court decision comes into play in this situation, and what was the Court’s reasoning?

    Correct Answer

    In Kyllo v. United States, the Court held that the warrantless use of a thermal detector to determine whether the amount of heat emanating from the suspect’s home was consistent with presence of high-intensity lamps used to grow marijuana violated the Fourth Amendment because the device yielded information about activities inside a home that police could not otherwise have obtained without entering. The Fourth Amendment warrant requirement applies when police use high-tech surveillance equipment to gather information about activities inside a home.

  3. Joe Staples’s lawyer demands that all charges against his client be dropped. What is the result, and why?

    Correct Answer

    Because police violated Joe Staples’ Fourth Amendment rights in conducting an illegal search, all of the evidence gathered on the marijuana growing operation is inadmissible. Joe Staples goes free.

Case 3

In order to combat the growing drug problem in Smalltown, the police department has gotten a narcotics detection dog for use at traffic stops. When officers go out to patrol Sometown Heights, they will bring along the dog along, and an officer will walk the dog around the vehicles they pull over. Officers Smithwick and Charleston were the first officers to use the dog. They turned onto Broadway, just as a car went speeding by, going 10 miles per hour over the speed limit. The officers pulled the car over.
It seemed like a routine traffic stop. Two young people, who did not appear to be drinking or on drugs, lost at night. Provided that the driver had a good record, Officer Smith was prepared to let him off with a warning. She took the license and registration from the driver and was running it when Officer Charleston decided to go out with the dog to get used to doing the inspection.
The dog did not alert as Officer Charleston took it around the passenger compartment, but when he got to the trunk, he alerted. Officer Smithwick was busy finishing up with the driver’s license and registration and was writing up a warning, when he looked up and saw the dog alerted on the trunk. This changed things. Officer Smithwick ordered the driver and the passenger out of the car and asked them if they had any weapons. She then used her flashlight to do a search of the passenger compartment.
“I’m going to have to ask you to open your trunk, Sir,” Officer Smithwick said. Inside the trunk was two ounces of marijuana. The driver was placed under arrest.

Questions

  1. Did the officers overstep constitutional boundaries when they searched the trunk? Why or why not? What Supreme Court cases factor into your answer?

    Correct Answer

    Yes, Officers Smithwick and Charleston were acting within the bounds of the constitution when they searched the trunk. The traffic stop itself was lawful, and because they used a narcotics detection dog, they were not violating the Fourth Amendment.
    In United States v. Place, the Supreme Court ruled that that suspects have no legitimate expectation of privacy in contraband and, consequently, have no right to object to the use of devices that expose only its presence. This decision was upheld in Illinois v. Caballes, a case that closely resembles the example here.


  2. Say there was a high-tech device available that would allow police officers to see into the trunk of a vehicle without opening it. Would it be permissible? Why or why not?

    Correct Answer

    No, it would not, because like X-rays, it could reveal the presence of weapons or drugs, but it would also reveal innocent items. Such a search would require a warrant. Use of detection devices that are capable of disclosing hidden

  3. Can police officers subject any car on the road to a walk-around by a narcotics detection dog? Why or why not?

    Correct Answer

    No, they cannot. They must have a lawful right of access to the object or Fourth Amendment grounds to seize it. Dog sniffs may be performed, without reasonable suspicion, in any location that where the officer is lawfully present on any object to which an officer has a lawful right of access. Otherwise, police need Fourth Amendment grounds to seize the object before they may expose it to a sniff.

Case 4

Seven-year-old Tracey Kidder had been kidnapped, and investigators suspected that she was carried across state lines. The investigation thus far had pinpointed the Kidders’ neighbor, Joel Grace, as the primary suspect. Kidder was last seen talking to Grace, a man the neighbors described as “shifty” and “not quite right.” One of the neighbors said that he had taken a strange interest in the girl. Grace had not been seen since Kidder disappeared. Federal investigators suspected that Grace may have taken Kidder to a house off of highway AA, as it is family property and his cousin lived there. Investigators had a photograph of Grace going through a toll booth five miles from the exit where the house was located. Grace did not go through the next toll, 40 miles up the highway.
Grace was believed to be armed and extremely dangerous. In the ransom call to the family, the kidnapper threatened to kill Tracey Kidder if he believed that the authorities were involved. The kidnapper informed the family that he would contact them again in two days’ time with instructions for where to drop the money.
Investigators were reluctant to get too close to the house, as it was in the middle of a wide clearing, to establish if enough evidence exists to get a warrant to search for the girl. If they could get enough evidence to determine whether or not Grace is in the house, then they would be able to conduct a rescue mission. Investigators had approached neighbors and townspeople, but no one had seen Grace or the girl. Police suspected that Grace had brought enough food and supplies with him to not need to leave the cabin. Time is of the essence in solving these crimes, and so they were determined to pinpoint Grace’s whereabouts.
Investigators had the cell phone number that Grace used to contact the Kidders, but suspected that he might try to switch phones.

Questions

  1. In order to tap Grace’s phone, what kind of authorization is required? What law governs this?

    Correct Answer

    They would need a roving wiretap order, per the Wiretap Act. A wiretap order is a specialized search warrant to engage in wiretapping and electronic surveillance. A roving wiretap order is a wiretap order that authorizes surveillance of any phone that the subject may use, instead of a specific facility or location. Roving wiretap warrants were developed partly in response to the increased use of cell phones.

  2. What are the procedural requirements for obtaining and limits of a wiretap order?

    Correct Answer

    The procedural requirements for a wiretap order exceed Fourth Amendment requirements for a conventional search warrant. The Wiretap Act:
    Limits the crimes for which wiretap orders may be issued.
    Requires approval by a high-ranking official within the Justice Department before the application may be submitted to the court.
    Requires proof that traditional investigative techniques have been tried and failed, appear unlikely to succeed, or are too dangerous to try.
    Requires establishment of probable cause to believe that: (1) a person is committing a crime for which an interception order may be issued; (2) the targeted facilities are being used in connection with that crime; and (3) an interception will produce communications relevant to that crime.
    Limits the duration of wiretap orders to a maximum of 30 days or attainment of the authorized objective, whichever occurs first. A fresh application is required for an extension.
    Requires that wiretap orders be executed so as to minimize intrusions into communications not related to the investigation.
    Limits disclosure and use of communications intercepted under a wiretap order to: (1) furtherance of the investigation, (2) national defense and security, and (3) giving testimony in court.


  3. Provided that they followed all the procedural channels (getting approval from a high-ranking official within the Justice Department), would investigators be able to get a roving wiretap order?

    Correct Answer

    Kidnapping falls within the types of crime serious enough to receive an interception warrant. Traditional investigative techniques have not produced enough evidence. Investigators have interviewed neighbors and townspeople to see if they have seen Grace and the girl, but no one had. Given the way the house is situated, investigative work could prove to be too dangerous for the girl.
    Investigators have probable cause to believe that Grace is the kidnapper, but they need to establish his exact location in order to search for the girl. They believe that Grace will use a cell phone to contact the family for ransom and that he also might use the phone to betray his location to someone helping him. This should be sufficient to obtain a roving wiretap order.

Case 5

Jeffrey Winklevoss conducted his business over the Internet—including his criminal business. Winklevoss had made a small fortune as an online entrepreneur and as a hobby, fancied himself a collector of rare antiquities. He had an impressive collection in his home, where he threw lavish parties for important friends.
To finance this hobby, Winklevoss traded in black-market antiquities. His friends soon had fine collections of their own, though most of them could not display them as proudly as he did. Winklevoss took orders from his contacts via e-mail and then sent messages in return when he obtained certain items to see if they might be interested. He used coded language, of course, but the overall gist of his communications was clear. Once an agreement was reached on price, payment and shipping details were arranged. Winklevoss avoided the telephone, and there was no paper trail linking him to the deal.
The authorities had suspected him for a couple of years of dealing in rare artifacts illegally, but they were unable to trace anything directly back to him. He was careful with shipping methods and worked with a network of couriers to make sure that his name was in no way connected with the shipments. However, after arresting one of his important friends on a cocaine charge an officer found a printout of an e-mail from Winklevoss that appeared to be a description of a rare artifact and a price in his wallet. When questioned about the paper, the important friend gave some incriminating testimony about Winklevoss’s online operation. The important friend did not know if Winklevoss came about these objects legally or not, but he did know that Winklevoss wanted everything kept quiet.
This gave the authorities an idea. They would search his e-mail records to see if they could get enough evidence to prosecute him. His love of collecting, they surmised, might have made him an e-mail saver.

Questions

  1. What law governs e-mail after it arrives at its destination? How does this law compare with other laws concerning communications?

    Correct Answer

    Once e-mail messages arrive at their destination, they are governed by the Stored Wire and Electronic Communications and Transactional Records Act (Stored Communications Act). In the very brief period after the sender hits “send” and the message arrives at its destination, messages are governed by the Wiretap Act, but for all intents and purposes, that protection is nonexistent.

  2. How does this law compare with other laws concerning communications?

    Correct Answer

    Protection under the Stored Communications Act is considerably less that that afforded by the Wiretap Act. During the first 180 days of storage, access can be obtained only through a conventional search warrant, which means that the government must have probable cause. However, protection dwindles with the passage of the time. After 180 days, if notice is given to the subscriber, disclosure can be compelled through an administrative subpoena, grand jury subpoena, or court order, based on a showing that the contents are relevant to an ongoing criminal investigation. The notice can be delayed by up to 90 days, if giving notice presents a risk to the investigation.
    E-mail that has been in storage for 180 days may, in many cases, be obtained without notice to the subscriber and on a showing as meager as the information is likely to be relevant to a criminal investigation.


  3. The authorities realize that they do not have much to go on for their investigation into Winklevoss, and so they seek out e-mails older than 180 days. Would they be able to obtain those e-mails?

    Correct Answer

    Based on the testimony from the “important friend’ and the e-mail printout, the authorities could get a subpoena from a judge to gain access to Winklevoss’s e-mail messages older than 180 days. By looking at older messages first, the authorities delay notifying Winklevoss of their investigation, allowing them more time to gather evidence.

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