DRAFT [8-4-15] TUFTS UNIVERSITY EXPERIMENTAL COLLEGE FALL 2015

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1 DRAFT [8-4-15] TUFTS UNIVERSITY EXPERIMENTAL COLLEGE FALL 2015 COURSE: EXP-0070-F The Law of Search and Seizure in the Digital Age: Applying the Fourth Amendment to Current Technology Tuesday 6:00-8:30PM Anderson Hall, Room 312 INSTRUCTOR: Christopher Doherty, Esq. CONTACT: Phone: Office Hours: By Appointment COURSE TEXT: Understanding Criminal Procedure, Volume 1: Investigation (6 th ed. 2013) Joshua Dresser and Alan C. Michaels, In addition to readings from the assigned text, each week students will be required to read synopses or selected portions of Supreme Court decisions, as well as law review articles relevant to that week s discussion. OBJECT OF THE COURSE: This course will explore the Constitution's search and seizure provisions of the Fourth Amendment and how they pertain to modern technology in a rapidly changing world. Can the NSA legally seize metadata regarding phone calls and

2 text messages in the name of national security? Can police attach a GPS device to a car to monitor a suspect's movement? Can Customs agents examine a laptop when one returns from a trip abroad? And what about my phone if I get pulled over by the police? While investigating these questions, we will explore the history of the Fourth Amendment, the rationale for the numerous Court-created exceptions to the Constitution's probable cause and warrant requirements, and how federal courts are applying these rationales, many of which were created in a different era, to these modern technologies. EVALUATION Students will be evaluated on the basis of two papers [one 6-8 pages (35%); one pages (55%)] on a subject mutually agreed to between the student and the Instructor. In addition, attendance and class participation will also count in formulating the final grade (10%). WEEKLY COURSE ASSIGNMENTS: Week 1: Introduction to the course and course requirements. Preliminary discussion of the history of the Fourth Amendment and the role it plays in restricting the actions of law enforcement agencies in investigating crimes. Discussion will include how that traditional Fourth Amendment analysis deals with the advent of new technology. Understanding Criminal Procedure, p. 1-13; Framing the Fourth, Michigan Law Review, April 2011, p Olmstead v. United States, 277 U.S. 438 (1928) Outline Katz v. United States, 389 U.S. 347 (1967) Outline Kyllo v. United States, 533 U.S. 27 (2001) - Outline Week 2: General discussion of criminal law and procedure and the federal judicial system. Analysis of the language of the Fourth Amendment and the two distinct provisions regarding unreasonable search and seizures and the requirements for search/arrest warrants. Analysis of the different levels of suspicion required by the courts for certain police activities. What constitutes a search under the Fourth Amendment? Understanding Criminal Procedure, p Limpuangthip v. United States, 932 A. 2d 1137 (D.C. 2007) Week 3: Discussion regarding what constitutes a reasonable expectation of privacy, and whether the Fourth Amendment applies to: open fields, abandoned property, dog searches and aerial surveillance. There will be a specific discussion regarding the use of drones by law enforcement for domestic surveillance. 2

3 Understanding Criminal Procedure, p California v. Ciraolo, 476 U.S. 207 (1986) Outline Dow Chemical v. United States, 476 U.S. 227 (1986) Outline Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses Congressional Research Service, April 3, 2013 California v. Greenwood, 486 U.S. 35 (1987) Outline United States v. Place, 462 U.S. 696 (1983) Outline United States v. Caballes, 543 U.S. 405 (2005) - Outline Week 4-6: A discussion of the legality of new technology in gathering information, including the NSA gathering of metadata, thermal imaging devices and GPS tracking devices. Understanding Criminal Procedure, p NSA Data Collection: Smith v. Maryland, 442 U.S. 735 (1979) - Outline Smith v. Maryland Turns 35, But Its Health is Declining Electronic Frontier Foundation Defending Your Rights In a Digital World June 24, 2014 Overview of Constitutional Challenges to NSA Collection Activities Congressional Research Service, p (May 21, 2015) Why Your Cell Phone Isn t Protected by the Fourth Amendment, Posted by Orin Kerr, New Yorker, August 5, Electronic Tracking: United States v. Knotts, 460 U.S. 276 (1983) - Outline United States v. Karo, 468 U.S. 705 (1984) Outline United States v. Jones, 132 S. Ct. 949, 565 U.S. (2012) Outline U.S. v. Jones: GPS Monitoring, Richard M. Thompson II Congressional Research Service, April 30, 2012 Legal Standard for Disclosure of Cell-Site Information (CSI) and Geolocation Information, Congressional Research Service, June 29, 2010 Court s Reversal Leaves Phones Open to Warrantless Tracking, Wired, May 5, 2015 Thermal imaging Devices Kyllo v. United States, 533 U.S. 27 (2001) - Outline 3

4 Week 7: Discussion of the meaning of the term seizure in the Fourth Amendment when applied to objects and persons, including distinguishing among voluntary encounters with the police, stop and frisk and arrests and the appropriate level of suspicion needed for each. Understanding Criminal Procedure, p ; ; ; Terry v. Ohio, 391 U.S. 1 (1966) - Outline Brendlin v. California, 551 U.S. 249 (2007) - Outline United States v. Place, 462 U.S. 696 (1983) - Outline Florida v. Royer, 460 U.S. 491 (1983) Outline Graham v. Connor, 400 U.S. 386 (1989) - Outline Week 8: General discussion regarding the application and execution of search warrants. This class will also begin the discussion regarding the several exceptions created by the Supreme Court to the need for law enforcement officers to obtain warrants to conduct searches and/or seizures. This class will also begin the discussion as to when police may conduct searches without warrants. Understanding Criminal Procedure, p Schmerber v. California, 384 U.S. 757 (1966) (intrusion into body) - Outline Cupp v. Murphy, 412 U.S. 291 (1973) (external search of body) - Outline Week 9-10: Discussion of under what circumstances a person may be searched incident to his arrest (including search of an arrestee s cell phone) and when a motor vehicle may be stopped and searched without the police obtaining a search warrant. Understanding Criminal Procedure, p Chimel v. California, 395 U.S. 752 (1969) - Outline Cupp v. Murphy, 412 U.S. 291 (1973) - Outline Arizonia v. Gant, 556 U.S. 332 (2009) - Outline Arizona v. Gant: Implications for Law Enforcement Officers FLETC Analysis Riley v. California, 573 U.S., 134 S.Ct (2014) - Outline Get a warrant! Today s Cellphone Privacy Decision in Plain English Amy Howe Editor/Reporter SCOTUS Blog, Posted Wed, June 25th, 2014 The Significance of Riley, The Washington Post, June 25, 2014 United States v. Ross, 456 U.S. 798 (1982) - Outline 4

5 Week 11-12: These classes will begin the discussion regarding searches that may be lawfully conducted without a warrant or probable cause to believe a crime has been committed. This class will include a discussion regarding searches based on the consent of a party, searches of persons and things when they cross the border (including electronic devices, such as laptops and cell phones); automobile checkpoints; TSA airport searches; drug and alcohol testing. Understanding Criminal Procedure, p ; Consent Search Schneckloth v. Bustamonte, 412 U.S. 218 (1973) - Outline Bumper v. North Carolina, 391 U.S. 543 (1968) - Outline Border Search United States v. Flores-Montano, 541 U.S. 149 (2004) - Outline United States v. Montoya de Hernandez, 473 U.S. 531 (1985) - Outline United States v. Ramsey, 431 U.S. 606 (1977) - Outline Computer Searches United States v. Cotterman, 709 F. 3d 952 (9 th Cir. 2013) - Outline United States v. Arnold, 523 F. 3d 941 (9 th Cir. 2008) - Outline In Re: Grand Jury Subpoena to Sebastian Boucher, 2009 U.S. Dist. LEXIS Checkpoint Searches Delaware v. Prouse, 440 U.S. 648 (1979) - Outline City of Indianapolis v. Edmonds, 531 U.S. 32 (2000) Outline U.S. v. Gabriel, 405 F. Supp.2d 50 (D. Me. 2005) Week 13: This class will discuss the exclusionary rule -- the consequence when law enforcement officers violate the Fourth Amendment when affecting a search or seizure. The class will include a discussion as to whether the rule is worth the cost to society in allowing guilty defendants to go free as a result of improper conduct by the police. Understanding Criminal Procedure, Mapp v. Ohio, 367 U.S. 643 (1961) Outline United States v. Leon, 468 U.S. 897 (1984) Outline 5