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- Police Search and Seizure Limitations.
- Investigative Uses?
A person stopped for investigation is not required to answer questions posed by the police and a refusal to answer cannot be the basis for an arrest. Police do have the authority to request identification if they stop a vehicle after observing a traffic infraction. The Supreme Court has made clear that one aspect of personal liberty protected by the Fifth and Fourteenth Amendments is your freedom to move from one place to another according to your inclinations.
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This allows citizens to pursue their livelihoods and to remain well-informed on public issues. The Fourth Amendment does protect citizens and non-citizens who are crossing into the United States at an international border or at places that are the functional equivalent of a border. However, the right of privacy guaranteed by the Constitution is more limited in this situation. Because of the national interest in excluding persons not authorized to enter the country and objects considered dangerous, there is a long-standing rule that government agents may stop and examine persons and property crossing into the United States.
Unlike other situations, a government agent does not need reasonable suspicion to detain and question a person at the border. Even though the Fourth Amendment generally requires a warrant to seize and search your property, government agents do not need a warrant to search belongings that you have with you while crossing into the United States. This would include any airport when you are arriving on an international flight [26] and the landing place of any private plane that crossed over the international border during its flight.
Additionally, a roving patrol may not stop a vehicle solely because the occupants appear to be of Mexican ancestry. When you enter into the United States at a border, border agents can require you to present documents revealing and proving your identity, such as a passport, a passport card or other official document. Border agents employ initial screening by speaking with you and examining your documents before requiring additional examination. At highway fixed checkpoints that are not the functional equivalent of a border, agents are not allowed to demand identification documents or search people and their belongings.
Although cars may be required to stop at these checkpoints, government agents may only briefly question the vehicle occupants about their immigration status and ask them to explain any suspicious circumstances. Only if the questioning gives rise to reasonable suspicion of illegal activity may the vehicle and its occupants be kept for additional screening and inspection.
Stopped by Police
A full search is allowed only if the screening gives agents probable cause to conduct a search. Only routine searches are allowed as a matter of course at borders. Thus, strip searches, in which a person is required to shed clothing, are not legal at the border unless the border agent is aware of specific facts that reasonably lead the agent to believe this specific person is concealing something beneath his or her clothing. Body cavity searches are even more severe intrusions upon personal privacy and dignity, and for a border agent to force a person to endure this kind of search the agent must have a clear indication that the person is carrying something illegal in a body cavity.
Seizing upon these court rulings, in the U. Customs and Border Protection agency issued a directive to its agents informing them that they have the authority to demand that persons entering the country hand over their electronic devices and provide any passwords so agents can review and analyze the information, whether or not there is any suspicion of illegal conduct.
Border searches of electronic devices have exploded in recent years, increasing from 5, in to 25, in In some cases, travelers have had their electronic devices subjected to forensic examinations, which involve the use of sophisticated software to extract and analyze deleted and hidden information. Forensic examinations are time consuming sometimes requiring days to complete and reveal much more information about the traveler than could be revealed by a manual inspection of the device.
Despite court rulings allowing government agents to conduct border searches of personal electronic devices, we believe that the Fourth Amendment does not authorize these searches and that border agents must obtain a warrant in order to search the content contained on personal electronic devices for the following reasons:. Modern cell phones are not just another technological convenience. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.
The digital device is a conduit to retrieving information from the cloud, akin to the key to a safe deposit box. Giving government agents this kind of access to personal information is patently unreasonable for purposes of the Fourth Amendment.
The introduction of FR encountered waves of strong criticism. A mistake by a face-scanning surveillance system on a body camera could be lethal. An officer, alerted to a potential threat to public safety or to himself, must, in an instant, decide whether to draw his weapon. A false alert places an innocent person in those crosshairs. It could follow anyone anywhere, or for that matter, everyone everywhere. It could do this at any time or even all the time. This use of facial recognition technology could unleash mass surveillance on an unprecedented scale.
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Smith raises the specter of the society George Orwell envisioned in , and he argues for legislation to prevent such a dystopian future from coming to pass. In response, Congress is considering curbing the use of FR. Representative Elijah Cummings D-MD , the chairman of the House Oversight and Reform Committee, believes that either a complete ban or a temporary moratorium is necessary.
On May 14, , San Francisco, California became the first locality to pass a law preventing its local government agencies from using FR. There may be no way to address the overarching fears all new surveillance technologies raise; however, major concerns can be addressed without slowing the use of FR.
A Hypothetical Scenario
One way to proceed is to ensure transparency in the ways law enforcement officials, prosecutors, and tech companies employ FR. Particularly important is that lawmakers ensure that law enforcement authorities only use FR to identify suspects, but not by itself as a sufficient cause for arrest or conviction. Louis Post-Dispatch Mar. There is also some research indicating that FRT algorithms may not be as accurate in reading the faces of certain demographics, in particular African Americans. FRT has been used for general surveillance, yet, so far its results have been mixed.
Law enforcement was able to identify 19 people with minor criminal records, although it was later admitted that the software only flagged petty criminals and resulted in some false positives. More recently, facial recognition was used by Baltimore police to monitor protesters during the unrest and rioting after the death of Freddie Gray, leading to the apprehension and arrest of protestors that had outstanding warrants. Sun Oct. Bergal, supra. Similarly, New Jersey Department of Motor Vehicle officials have referred about 2, fraud cases to law enforcement since Additionally, airports are using FRT to assist airlines by having passengers board planes based on photographic images they take instead of boarding passes.
These photos are compared to previously stored photographs from passports and visas on file with the U. Customs and Border Patrol. Globe May 31, The software also has been useful in investigations—not for conclusive identification of an individual, but in conjunction with other evidence. FRT has contributed to establishing probable cause for the arrest of suspected activity of assailants in videos of fights posted on YouTube In re K.
Roberts-Rahim, No.
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Green, No. May 16, Facial recognition software also was used in an attempt to find the suspects of the Boston Marathon Bombings in , though the use of the software was ultimately unhelpful, due in part to the uncontrolled environment in which the surveillance images were taken. Recently, the NYPD arrested an individual related to a shooting after taking a surveillance image from a nightclub of the shooter and creating a full 3-D image of him, then running it through a facial recognition software program that revealed likely matches.
Greg B. Daily News Aug. Officers then compared the images looking for similar physical characteristics between them, which enabled officers to narrow it down to a single image that was utilized in a photo array that was then shown to witnesses. With increasing reliability and use of FRT, at some point soon, prosecutors will seek to introduce the technology into evidence in court, either to establish probable cause or as evidence of an identification.
At that time, the scientific reliability of FRT algorithms may have to be established by prosecutors under either the Frye or Daubert standard in court before the evidence is ultimately accepted. See Daubert v. Merrell Dow Pharms. Progress and improvements in facial recognition are made daily and increased accuracy is foreseeable. See Smith, supra. Ultimately, it is expected that law enforcement will seek to use FRT for real-time analysis of faces and immediate identification.
Also, state and local governments are investing tremendous resources and increasingly relying on biometric and pattern recognition technologies to help thwart domestic terrorism and other crime, representing a shift in how such investigations are conducted. A component of the database, the Interstate Photo System, incorporates facial recognition and search capabilities into a photo database, consisting of photographs of different sources, including both criminal mugshots and noncriminal sources, such as employment records and background check databases. However, when it released NGI, the FBI issued a caveat that the system was to be used for investigatory purposes only, and it could not serve as the sole basis for an arrest.
See Pagliery, supra. The Fourth Amendment prohibits an unlawful search of a place where a person has a reasonable expectation of privacy. In Katz v. United States , the Supreme Court announced a two-part test to determine whether a person has a reasonable expectation of privacy, which assesses 1 whether the person exhibited an actual, subjective expectation of privacy and 2 whether that expectation is one that society recognizes as reasonable. The Katz test provides a framework for analyzing Fourth Amendment issues.
Criminal Rights
United States. Before the Carpenter opinion, government agencies could obtain historical cell phone location records with only a court order by explaining to a judge that the information was necessary to an investigation and that the information was in the possession of a third party. However, Carpenter ruled that the government must be put to a higher standard and must obtain a judicial search warrant based on sworn facts that probable cause exists to search for the requested items. Thus, law enforcement agencies must now seek a search warrant for individual, personal historical CSLI from phone companies in these specific situations: where no exigent circumstances exist and for date ranges of more than six days.
The Carpenter Court has found that an individual has an expectation of privacy in his or her personal information acquired in large quantities over an extended period of time even when possessed by third parties.