The U.S. Supreme Court held in Riley v. California (2014) that police must obtain a warrant from a judge before inspecting the digital contents of a suspect’s cellphone. The reason, the Court memorably opined, is that a cellphone holds “the privacies of life.”
But what about a backpack? Or a purse? Or a shopping bag? Such items don’t come close to having the deep privacy implications of a cellphone, which is stuffed with location data, recent call logs, emails, and personal photos. But personal carry containers, too, can hold items reasonably considered to be private. Are police free to paw through a bag or backpack, or does the same principle from Riley also apply to them? This question is central to the case of William Bembury, who was suspected by police of selling a joint containing synthetic marijuana when he was placed under arrest in a park in Lexington, Kentucky, in 2019. While Bembury was placed in handcuffs, officers searched his backpack and found a small bag of synthetic marijuana and a few dollars. However, Bembury was not wearing the backpack when police searched it – a key fact, since police are allowed to search a person under arrest, including any containers on their person, to ensure officers’ safety. But Bembury’s backpack was sitting on a park table at the time of the arrest. And Bembury never consented to the police search of it. When Bembury appealed on Fourth Amendment grounds, he won in a state appeals court. But he lost before the Kentucky Supreme Court. Kalvis Golde of Scotusblog writes of that court’s dilemma: “Acknowledging that the U.S. Supreme Court has yet to decide whether items like backpacks or purses are categorically protected by the Fourth Amendment during arrest, the state supreme court was split on how to proceed.” In the end, a majority of Kentucky Justices held that because the backpack had been immediately in Bembury’s possession, the officers were justified in their search. Bembury is now asking the Supreme Court to grant review and bring clarity to a hodgepodge of state precedents. Bembury’s petition for review asks the Supreme Court to give state courts a principle by which to draw a line between the permissible search of a person, and nearby “purses, backpacks, suitcases, briefcases, gyms bags, computer bags, fanny packs, etc.” The appeal notes “there is little uniformity” with state courts that “have not yet parsed this issue in those exact terms.” Justices might feel that this case itself is a bit of a Pandora’s backpack. Without a clear standard, police are free to paw though any object they wish. On the other hand, a suspect carrying a backpack stuffed with contraband might simply toss it a few yards away and refuse to allow officers’ to inspect it. The Court might consider that it is odd that a clearer standard exists in the digital world with cellphones under Riley (though still sometimes honored in the breach) than with physical objects an arm’s reach away from a suspect. The high Court should consider granting a review of this case to bring clarity to how the law treats evidence in thousands of cases every year. Byron Tau – journalist and author of Means of Control, How the Hidden Alliance of Tech and Government Is Creating a New American Surveillance State – discusses the details of his investigative reporting with Liza Goitein, senior director of the Brennan Center for Justice's Liberty & National Security Program, and Gene Schaerr, general counsel of the Project for Privacy and Surveillance Accountability.
Byron explains what he has learned about the shadowy world of government surveillance, including how federal agencies purchase Americans’ most personal and sensitive information from shadowy data brokers. He then asks Liza and Gene about reform proposals now before Congress in the FISA Section 702 debate, and how they would rein in these practices. Just as the government hates encryption, so too does it hate encryption’s physical analogue in the form of safety deposit boxes.
The mere existence of US Private Vaults – a company in Beverly Hills that could not reveal customers’ names because it did not collect them and could not open the vaults it provided because it did not keep duplicate keys – was prima facie evidence to the FBI of wrongdoing. Seeking to expose what it believed would be a nest of drug dealer cash, the FBI persuaded a magistrate to allow agents to open these vaults with the express purpose of checking the identities of account holders on sheets taped to the inside of the vault’s safety deposit boxes. FBI agents took this warrant as an excuse to seize assets over $5,000 – though the owners were charged with no crime. In 2021, Reason documented in stills taken from surveillance footage how agents rampaged through the vaults and boxes in a frenzy, ripping open a heavy-duty envelope full of gold coins kept by an 80-year-old woman for her retirement savings. Coins fell to the floor, which the FBI cannot account for now. Some $2,000 in cash seemingly “disappeared.” The woman and other victims, with the help of the Institute for Justice, mounted a class-action lawsuit against the FBI. While US Private Vaults later pled guilty to money laundering charges, these plaintiffs had a host of mundane reasons for turning to its services. Reasons varied from distrust of the stability of banks during the Covid era, to transferring assets from a bank in a wildfire zone, to finding that safety deposit boxes at other institutions had long waiting lists. The Ninth Circuit unanimously reversed a lower court verdict and rebuked the FBI for a lawless search. Judge Milan Smith Jr. said the government had opened the door to the “limitless searches of an individual’s personal belongings” reminiscent of the agents of the British crown in ransacking colonial America. The Ninth’s strong stand for the Fourth Amendment is good news. But, as we have seen in governments’ war on encryption, there is a mindset shared by many in law enforcement that something private is inherently suspicious and worthy of warrantless examination. “We Don’t Need a Warrant" A federal class-action lawsuit in Brooklyn claims that caseworkers from New York City’s Administration for Children’s Services use lies, coercive techniques, and threats to gain entry into homes without a court order.
The plaintiffs tell a chilling story in their filing. “One night, without warning, a mother in New York City hears a knock on the door. Her children are home with her. The family is cooking, or playing, or sleeping. “When the mother opens the door, two government investigators are standing outside, loudly demanding to be let inside. She is surprised and confused. She asks what this is about. The investigators command the mother. You have to let us in. We need to look in your home. We don’t need a warrant. We’re going to get the police here if you refuse. We’re not leaving until we come inside. If you don’t let us in, we’re going to take your children. “The mother has no choice, it seems. Terrified, she reluctantly opens the door and steps aside, and the investigators walk into her home. It is clear that there is no present danger to anyone in the house, but still the investigators search the home top to bottom. They look inside medicine cabinets, under beds, in closets and dresser drawers, in the refrigerator, and in the cupboards. The mother does not know why this is happening. The children are scared by the strangers combing through their clothes. “The investigators demand to see the children’s bodies under their clothes. They tell the mother to leave them alone in a room with her children. The investigators command the children. Lift up your shirt. Pull down your pants. I need to see your chest, your legs, your back. The mother fears that if she does not acquiesce to the investigators’ demands, they will take her children at any moment. Her fear is reasonable; the investigators are telling her that might happen. “The investigators leave as abruptly as they arrived. They have threatened to return, even though they found no evidence that the children are in danger. There seem to be no rules and no laws to protect the mother and her children from this intrusion.” This may seem a little novelistic for a court filing. Yet this vignette agrees with an interview given by one of the plaintiffs, Shavano Warmington, a mother of six who lives in Queens. She told The New York Daily News, “When ACS comes, they treat me like a criminal in my own home. They give no respect to my wishes. They come banging the doors so loud that the neighbors came out wanting to know what was going on. The caseworkers don’t show identification and they threaten to bring the police if I don’t allow them entry.” As with law enforcement, child protective agencies must balance their need to investigate against the need to respect the Fourth Amendment, which forbids entry into a home without a warrant. An ACS spokeswoman told The Daily News that the agency is expanding an initiative to inform families of their rights during child welfare probes. It should be said that these claims have yet to be adjudicated. We affirm that society has no more urgent or solemn obligation than to protect children. For this reason, the child protective service agencies throughout the United States are instrumental in investigating possible cases of abuse and neglect. Surely this important job can be performed with sensitivity and respect for the constitutional rights of parents. |
Categories
All
|