3rd Party Doctrine – Fourth Amendment Slippery Slope

 

The Fourth Amendment is being discussed in our next class, seems a simple topic to write about.  As I am learning in the MLS program, nothing is simple about understanding the legal framework and protections of the U.S. Constitution.  The Fourth Amendment is no exception.

FOURTH AMENDMENT

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched and the persons”

I have always thought that the Fourth Amendment only protected my home from being illegally searched without a warrant. 

When I think of information on my cellular phone, does the government need a warrant to look at this data?

What was the intent and purpose of our founders writing the Fourth Amendment?  How does the court look at defining whether there is a Constitutional violation of your rights? 

First, we need to understand Search and Seizure are two different things: 

Search

·       -Authorities coming into your private residence, self, or property looking for evidence

Seizure

·         -When authorities take property from the search or restrain/arrest a citizen

The definitions seem narrow, but they are not.  In fact, when we talk about illegal search and seizure it could relate to my vehicle, my person, my phone, my digital footprint, etc. 

To understand the Fourth Amendment further, we look to the courts and how they interpret this protection.  Katz v United States regarded the government listening to the conversation on a pay phone with a door, without a warrant.  Mr. Katz was running an illegal gambling operation.  He stated his Fourth Amendment rights were violated.  In this case, Justice John Marshall Harlan II established two criteria questions as a test for a reasonable expectation of privacy:

1.      1.   Did the individual have a subjective/reasonable expectation of privacy?

2.     2.   Was the expectation of privacy one that society would recognize as reasonable?

It was found that his Fourth Amendment rights were violated, and the case was remanded by the U.S. Supreme Court.

These questions now became a judicial lens for all future Fourth Amendment cases in the future.

Think about it, the founders had no idea what a public pay phone was in 1791 or how it would relate to our protections today.  However, the Fourth Amendment does apply, and the courts are faced with interpreting the law in different contexts to apply to unforeseen infringements on our rights. 

We really could go down a rabbit hole with this topic today.  However, I only want to focus on information on our cellular phones that would fall under the 3^rd Party Doctrine established by United States v. Miller.  Let's define:

Third-Party Doctrine

“Legal doctrine that holds that people who voluntarily give information to third parties have no reasonable expectation of privacy in that information”

In this case, the U.S. Supreme Court held that a warrant was not required for third-party information we have freely given.

I don’t know about you, but every application on my phone, website, social media portal, and email hosting service requires me to read an exhaustive contract that I must digitally sign.  I have no idea if I am agreeing for them to share all my data. 

Is this information not protected by the Fourth Amendment?  Well, that is the challenge faced by the courts today.  Data privacy is at the forefront of State and Federal Legislation today due to the complexities of this issue.

Case law is being established such as Carpenter v. United States in 2018.  The Supreme Court held in a five to four decision that the GPS location on your phone could not be tracked without a warrant.  However, there was disagreement being that it’s third-party data.  This was a big win for our rights to privacy, but will it be addressed differently in the future?

What is being done today?  States are weighing in and creating privacy laws such as the California Consumer Privacy Act (CCPA) which is the most expansive law I have found.  In fact, only 4 States have weighed in on this issue, California, Virginia, Colorado, and lucky for us, Utah.

Do you think your Fourth Amendment rights are not protected with your cellular phone due to the third-party doctrine?  Does this worry you or how do you see your use of this device change in the future?

I didn’t talk about it on the blog, but I added an interesting link regarding Snapchat, a gun, and your rights.  Also, I did not broach Probable Cause, Exclusionary Evidence, or other topics relating to the Fourth Amendment.  I encourage you to do your own research.  Thanks for reading my blog.

 https://www.youtube.com/watch?v=OG6M_h8bBNE

https://dlglearningcenter.com/from-snapchat-to-searches-social-media-post-leads-to-fourth-amendment-violation/#:~:text=From%20Snapchat%20to%20Searches%3A%20Social%20Media%20Post%20Leads%20to%20Fourth%20Amendment%20Violation

 

Tainted Evidence, Tainted Deputies, Tainted Attorney, Tainted System

That's Not Nearly All

By Justin Nicolas

Fuqua, A. (Director). (2001). Training Day [Motion Picture]

Orange County of California has recently been strife with scandal. It all seems to stem from the mishandling of evidence. The fruits from that scandal are poisonous to the constitutional rights of many.

Investigations and audits in to Orange County Sheriff's Department (OCSD) exposed gross handling of evidence. OCSD policy required deputies to book in evidence by end of shift. Almost a third of evidence collected between 2016 and 2018 were booked pass deadline. An average of three and a half days went by before evidence was properly submitted. While in limbo, evidence was stored in numerous places like that back of deputies' vehicles and even their homes. It is speculated that more than nine thousand pieces of evidence are unaccounted for.¹

Another Orange County controversy emerged around the same time that the evidence scandal came to light. Orange County District Attorney's Office (OCDA) and OCSD was also investigated by the U.S. Department of Justice (DOJ) Civil Rights Division. The DOJ found that OCDA's and OCSD's custodial informant program violated defendants' constitutional rights. OCSD used under inmates as their own agents to elicit incriminating statements from defendants. That violated a defendant's right to counsel under the Sixth Amendment. OCDA did not share exculpatory evidence about the informants to criminal defendants. In failing to do so OCDA violated the Fourteenth Amendment right to due process of law.² 

More scandals from within the scandals have emerged. In 2020, Sheriff employees have been criminally investigated.⁴ In 2021, an Orange County Grand Jury decided an investigation of procedures and safeguards was needed.⁵ In 2022 Ebrahim Baytieh, was fired as prosecutor, is now a judge being questioned for his involvement.⁶ In May of this year, seventeen sheriff deputies faced possible criminal prosecution. 

Orange County is just one of the many places that have similar issues of negligence and alleged corruption.⁷

To Make Things Right...

...the Supreme Court of the United States (SCOTUS) made rules to deter misbehavior of law enforcement. 

• In what ways OCSD and/or OCDA broke the Exclusionary Rule?
• Were they acting in good-faith or bad-faith? 
• Is it reasonable for law enforcement to keep evidence in their home?
• What safeguards could prevent tainting of evidence?

                    

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¹Romo, V. (2019, December 8). Evidence Scandal In Orange County Stirs Conflict Within Law Enforcement. Retrieved from National Public Radio: https://www.npr.org/2019/12/08/786135739/evidence-scandal-in-orange-county-stirs-conflict-within-law-enforcement; Romo, V. (2019, December 5). Orange County Sheriff's Dept. Mishandled Evidence; 

Kept It Quiet For Nearly 2 Years. Retrieved from National Public Radio: https://www.npr.org/2019/12/05/785256290/orange-county-sheriffs-kept-evidence-booking-crisis-secret-for-nearly-two-years.

²U.S. Examines Whether Orange County Violated Defendants’ Rights. (2016, December 15). Retrieved from The New York Times: https://www.nytimes.com/2016/12/15/us/orange-county-justice-department.html?searchResultPosition=1; 

Division, D. o. (2022, October 13). Investigation of the Orange County District Attorney’s Office and the Orange County Sheriff’s Department. Retrieved from Office of Public Affairs Department of Justice: https://www.justice.gov/d9/press-releases/attachments/2022/10/13/orange_county_findings_report_10.13.2022_0.pdf

⁴Gerda, N. (2020, August 7). OC Sheriff Evidence Booking Scandal Expands With 15 More Investigations of Deputies Disclosed. Retrieved from Voice if OC: https://voiceofoc.org/2020/08/oc-sheriff-evidence-booking-scandal-expands-with-15-more-investigations-of-deputies-disclosed/; 

Bartley, L. (2023, May 6). Judge orders OCSD to turn over confidential files on sergeant accused of eavesdropping. Retrieved from ABC7: https://abc7.com/orange-county-attorney-client-phone-calls-matthew-leflore-investigation-mishandled-evidence/13217166/

⁵Kelly, S. (2021, July 1). Orange County Grand Jury 2020-2021 Report. Retrieved from Orange County Grand Jury: https://ocgrandjury.org/sites/jury/files/2023-06/2020-2021_Grand_Jury_Final_Report_0.pdf

⁶Biesiada, N. (2023, September 7). Could Scores of Convicted Criminals in OC Get New Trials Due to Prosecutors Misconduct? Retrieved from Voice of OC: https://voiceofoc.org/2023/09/could-scores-of-convicted-criminals-in-oc-get-new-trials-due-to-prosecutors-misconduct/

⁷Kelly, J., & Nichols, M. (2020, June 11). TARNISHED BRASS. Retrieved from USA Today: https://www.usatoday.com/in-depth/news/investigations/2019/04/24/usa-today-revealing-misconduct-records-police-cops/3223984002/

Billable Hours in CrazyTown

 

Photo: Example of the Sovereign Citizen License Plate available on Amazon

On March 1, 2023, after being pulled over for not having legal license plates, Chase Allen was killed by police in Farmington after he pulled a gun on officers.  The District Attorney declined to press charges against the arresting officers because it was determined they “had a reasonable, articulable, and objectively verifiable belief that the use of deadly force was necessary to prevent death, or serious bodily injury to themselves or others.”[1]  It was brought out that Chase and his parents are members of the Sovereign Citizen movement.  This case brings attention locally to the movement and highlights the potential ethical conflict that can be created for an attorney if asked to defend a Sovereign Citizen.

Sovereign Citizen Movement

It's estimated that there are as many as 300,000 or more self-proclaimed Sovereign Citizens in the United States alone.  Their core beliefs include that “the US government (is) illegitimate, that common law supersedes Federal law, and that they are not U.S. Citizens, but rather ‘natural persons’ not subject to government authority.”[2]

Ethical Practice

Model Rules of Professional Conduct outline ethical legal practice. Rule 1.1 requires that attorneys competently represent their clients by possessing adequate expertise in the relevant area of law.[3]  It also states in 1.2 that the lawyer is to follow the client’s decision concerning the objective of representation.[4]

Conflict

In Nix v Hoke (2004) the 9^th circuit court affirmed that even obstinate or misinformed clients retain legal rights to representation on appeal.[5]  Conversely, in United States v. Schneider (1990) the 9^th circuit also ruled that attorneys have an ethical obligation to withdraw if a client demands pursuit of frivolous or false legal filings.[6] Utah Rule 1.16 outlines declining representation. Rule 1.16(b)(2) asserts that an attorney may terminate representation of a client if the client persists in a course of action involving the lawyer services that the lawyer reasonable believes is criminal or fraudulent.[7]  The fake laws that Sovereign Citizen demand to have applied to them are fraudulent.

Discussion:

Is there an ethical conflict created by these cases? One seemingly calls for an attorney to withdraw if the client insists on frivolous or false filings, while the other says that criminal defendants retain the right to counsel despite frivolous defenses.

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[1] Pierce, Scott D., “Farmington Police Shooting of Suspected Sovereign Citizen Chase Allen Ruled Justified.” Salt Lake Tribune, 13 Sep 2023 https://www.sltrib.com/news/2023/09/13/farmington-police-shooting/

[2] Sovereign Citizens Movement. Southern Poverty Law Center. (n.d.). https://www.splcenter.org/fighting-hate/extremist-files/ideology/sovereign-citizens-movement 

[3] UCJA Rule 13-1.1

[4] UCJA Rule 13-1.2 (a)

[5] ELLEN SEGAL HUVELLE, U. S. D. J. (2001, April 26). Nix v. Hoke. https://casetext.com/case/nix-v-hoke-2

[6] POSNER, C. Judge. (1990, August 24). U.S. v. Schneider. https://casetext.com/case/us-v-schneider-16

[7] UCJA Rule 1.16(b)(2)

How Many Parties Is Too Many?: “The Last of Us” Star Files Complaint in Abuse Case

 By Jenna Nelson

Actress Ashley Johnson re-entered the media spotlight this year due to her hit video game, “The Last of Us,” being remade into an HBO series. Amongst the praise for the show and her role in the series, details of her relationship with media producer Brian Foster emerged. [1] The fallout of their relationship came to a head when Johnson and six other plaintiffs filed a complaint against Foster in the California Superior Court for his threats, violence, and abuse (full complaint available here). The exposé-esque filing raises questions surrounding the number of parties in the lawsuit.

The Plaintiffs

Each of the seven plaintiffs had different relationships with Foster, diverse causes of action against Foster, and separate sets of facts related to their case. The plaintiffs include Johnson, Johnson’s sister, and five of Foster’s friends and acquaintances. The complaint has eight causes of action, each related to Foster’s inappropriate behavior. However, not all defendants claim each one. This brings up a key question: how and why are these plaintiffs filing one complaint when they each assert different causes of action that emerge from separate events? 

They likely used the logic of permissive joinders, which allows plaintiffs to “join in one action… if they assert any right to relief… with respect to… the same transaction, occurrence, or series of transactions or occurrences.” [2] The “series of transactions or occurrences” in this case is Foster’s pattern of abusive behavior. But, it is still unclear why the plaintiffs filed under one complaint. What are the pros and cons of the plaintiffs filing together?

The Defendants

The defendants in this case are Brian Foster and Does 1 through 20. These unknown parties are responsible for the damages in this case as a “principal, agent, co-conspirator, aider and abettor, or alter ego.” 

This is a large number of potential defendants and a diverse set of roles these unknown parties may have played. For example, a legal alter ego refers to a corporation used to do personal business. [3] When reading the facts of the case, it is challenging to identify people other than Foster who are liable. It seems nearly impossible to identify that many defendants within discovery. Why did the plaintiffs include so many Does in their complaint?

[1] Abbey White, ‘The Last of Us’ Star Ashley Johnson and Six Other Women Allege Sexual, Physical Abuse by Brian Foster, The Hollywood Reporter (October 6, 2023), https://www.hollywoodreporter.com/news/general-news/last-of-us-star-ashley-johnson-6-women-allege-abuse-brian-foster-1235611230/.

[2] Federal Rules of Civil Procedure, Rule 20(a)(1).

[3] Alter Ego Definition, Black’s Law Dictionary 11th ed. 2019.