“Here’s the mail it never fails . . . :” Judge Posner Criticizes “Rhetorical Envelopes” In Which Judicial Opinions Are “Delivered To The Reader”

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Judge (pd)[Apologies for the Blue's Clues reference in the title to this post.]

In his concurring opinion in a recent Seventh Circuit decision — United States v. Dessart — Judge Posner agreed with the majority's conclusions, but wrote separately to express his "reservations about some of the verbal formulas in the majority opinion." He did not "criticize the majority for reciting them" because, as he noted, they are "common, orthodox, even canonical." But he did criticize the "verbal formulas" themselves as being "inessential and in some respects erroneous" and thus, he urged, "ripe for rexamination."

What were the "verbal formulas" that Judge Posner was so keen to criticize? Just some of the legal standards that we see recited in opinions every day. For example, the commonly-used "abuse of discretion" standard, of which Judge Posner appears not to be a big fan. In his concurring opinion, Judge Posner noted that the majority defined this standard as including "among other missteps, 'material errors of law.'" This apparently did not jibe with Judge Posner's understanding of discretion and its abuse, as he explained:

Of course, material errors of law are potentially very serious, but what has that to do with discretion or its abuse? Common as the term "abuse of discretion" is in opinions dealing with appeals from district court decisions, I find it opaque. If the appellate court is persuaded that the trial court erred in a way that makes the trial court's decision unacceptable, it reverses. What has discretion to do with it? And "abuse" seems altogether too strong a term to describe what may be no more than a disagreement between equally competent judges – the trial judge and the appellate judges – that the appellate judges happen to be empowered to resolve as they see fit.

Similarly, he challenged the majority's similarly well-settled statement that an appellate court, when reviewing a trial court's decision to issue a search warrant, must afford that decision "great deference." (Among the issues in the Dessart case was whether a search warrant was supported by probable cause.) Judge Posner acknowledged that the standard comes from a Supreme Court decisions holding that "[a] magistrate's determination of probable cause should be paid great deference by reviewing courts," but questioned it nonetheless. First, he questioned why "great" deference should be afforded to such decisions since "warrants [are] usually issued by the most junior judicial officers – and often police or prosecutors can shop among magistrates for one who is certain or almost certain to respond affirmatively to a request to issue a warrant." Second, Judge Posner noted that "[n]othing in the [Fourth] amendment requires warrants – ever," therefore it was not fair, in Judge Posner's opinion, to conclude, as is often concluded, that the Constitution expresses a preference for searches conducted pursuant to warrants or to afford great deference to a trial court's decision to issue one.

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New Jersey Supreme Court: Cell Phone Users Have Privacy Interest In Cell Phone Location Information

by:  Peter J. Gallagher

 

The New Jersey Supreme Court ruled today that police cannot access the location information revealed by your cell phone without first acquiring a warrant based on probable cause.  In State v. Earls, police were investigating a string of burglaries.  A court-ordered trace of a cell phone stolen in one of the burglaries led them to an individual at a bar in Asbury Park who told them that his cousin had sold him the phone.  The individual also told police that his cousin was involved in the burglaries and kept the stolen items in a storage locker that was rented by his cousin or his cousin’s girlfriend.  The next day, police located the girlfriend, went with her to the locker, and found various stolen items.  The next day, police learned that the girlfriend had disappeared, and that defendant had threatened her when he learned that she was cooperating with police.   After obtaining an arrest warrant for defendant, police began to search for him.  As part of this search, the police contacted T-Mobile to obtain information about the location of a cell phone that they believed defendant had been using.  This information eventually led them to a motel where defendant and his girlfriend were staying. 

Defendant was arrested and eventually indicted on several charges stemming from the burglaries.  He moved to suppress evidence seized at the motel where he was apprehended.  The trial court denied the motion, holding that police should have obtained a warrant before tracking defendant’s phone, but that the information was nonetheless admissible under the emergency aid exception to the warrant requirement (the emergency being the threat to defendant’s girlfriend’s safety).  Defendant pled guilty but appealed the suppression ruling.  The Appellate Division affirmed, but on different grounds, holding that defendant had no reasonable expectation of privacy in his cell phone location information. 

The Supreme Court reversed.  It began by discussing the advances in cell phone technology that now make it possible for providers to pinpoint the location of a cell phone within a matter of feet, and the fact that details about the location of a cell phone can provide an intimate picture of an individual’s personal life by revealing where people go and with whom they affiliate.  Under New Jersey law, individuals do not lose their right to privacy simply because they have to provide personal information like this to third parties to obtain services.  Thus, cell phone users reasonably expect that the private information that they (or, perhaps more accurately, their phones) transmit to cell phone providers about their location will remain private:

[C]ell phones are not meant to serve as tracking devices to locate their owners wherever they may be.  People buy cell phones to communicate with others, to use the Internet, and for a growing number of other reasons. But no one buys a cell phone to share detailed information about their whereabouts with the police . . . Citizens have a legitimate privacy interest in such information. Although individuals may be generally aware that their phones can be tracked, most people do not realize the extent of modern tracking capabilities and reasonably do not expect law enforcement to convert their phones into precise, possibly continuous tracking tools.

Accordingly, before police can obtain this information from a cell phone provider, they must obtain a warrant based on a showing of probable cause or qualify for an exception to the warrant requirement. 

In its decision, the Supreme Court noted that federal courts are split on whether a warrant is required before police can obtain information about an individual’s cell phone location.  However, it also noted that the New Jersey Constitution generally provides greater protection against unreasonable searches and seizures that the Fourth Amendment.  This decision further emphasizes the differences between New Jersey law and federal law, particularly as it relates to information that is revealed to third parties.