Fourth Amendment Amicus Briefs

Maryland v. King, U.S. Sup. Ct., No. 12-207, decision below 425 Md. 550, 42 A.3d 549 (Md. Apr. 24, 2012), brief filed 2/1/13. DNA Sample---Arrestee—Fourth Amendment---Searches---Balance of Interests. Amicus curiae brief of the National Association of Criminal Defense Lawyers supporting Respondent. Question presented: Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes? Argument: A state’s search for DNA samples from an arrestee’s body without a warrant or any basis for suspecting the DNA is connected to a crime is unreasonable, regardless of the balance of interests. Physically intrusive searches like the collection of DNA from inside an arrestee’s body require a warrant and probable cause. The balance of interests alone does no determine reasonableness even for less intrusive bodily searches. The state’s collection of DNA from arrestees falls outside the limited circumstances permitting warrantless, suspicionless searches. Accordingly, the judgment of the Maryland Court of Appeals should be affirmed. Authors: Lisa Blatt, Anthony J. Franze and Sarah M. Harris, Arnold & Porter LLP, Washington, DC; Jonathan Hacker, Washington, DC.

Florida v. Harris, U.S. Sup. Ct., No. 11-817, decision below 71 So.3d 756 (Fla. 2011), brief filed 9/4/12. Search and Seizure—Dog Sniffs—Motor Vehicles. Amicus curiae brief of the National Association of Criminal Defense Lawyers, Florida Ass’n of Criminal Defense Lawyers, the American Civil Liberties Union and the ACLU of Florida in support of the respondent. Argument: An alert by a “trained” or “certified” drug detection dog by itself is insufficient to establish probable cause; evidence of a dog’s reliability is but one factor in a totality-of-the-circumstances analysis recommended by the Florida Supreme Court. Real-world data demonstrate that even trained or certified dogs have a high rate of false alerts; brief lists a number of different factors relating to a drug dog’s reliability. Authors: Danielle Spinelli, Wilmer Cutler Pickering Hale and Door LLP, Washington, DC, et al. (see brief cover for complete list of authors).

Florida v. Jardines, U.S. Sup. Ct., No. 11-564, decision below 73 So.3d 34 (Fla. 2011), brief filed 7/9/12. Search and Seizure—Dog Sniffs—Private Residence. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Florida Association of Criminal Defense Lawyers in support of the respondent. Argument: Acting on a tip, police conducted a warrantless “canine sniff” with a drug detection dog of the front door of the defendant’s residence and obtained a search warrant based on the dog’s alert. Marijuana was found growing in the defendant’s home. The Florida Supreme Court held that the “sniff test” was itself a search requiring probable cause. Amici argue that persons have a heightened expectation of privacy in their homes and that dog sniffs are highly intrusive, since the sniff can reveal much more than the mere presence or absence of contraband and is a search within the meaning of the Fourth Amendment. Absent exigent circumstances, such a suspicionless search of a home is inherently unreasonable. Further, allowing suspicionless dog sniffs of houses would permit indiscriminate sweeps of residential neighborhoods, a practice some law enforcement officials have already begun to employ. Authors: Danielle Spinelli, et al., Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC; Jonathan D. Hacker, O’Melveny & Myers LLP, Washington, DC; Norman L. Reimer and Mason C. Clutter, NACDL, Washington, DC.

Simels v. United States, U.S. Sup. Ct., No. 11-947, decision below 654 F.3d 161 (2nd Cir. 2011), brief filed 2/28/12. Wiretapping—Suppression of Illegal Intercepts—Impeachment. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari. Argument: In the decision below, the Second Circuit held that the defendant’s testimony could be impeached with portions of an illegally obtained wiretap that the trial court had suppressed under Title III of the 1968 Omnibus Crime Act (18 U.S.C. §2515) (“the Wiretap Act”). In the context of Title III wiretap intercepts, the constitutional protections of the Fourth Amendment are a floor, not a ceiling; §2515 provides more protection than the Fourth Amendment in that the statute provides that illegally obtained oral or wire communications shall not be “received in evidence in any trial.” The judicially-created impeachment exception created by the Second Circuit collides with the fundamental protections underlying Congress’s enactment of Title III. Author: Joshua L. Dratel, Dratel & Mysliwiec, P.C., New York, NY.

United States v. Jones, U.S. Sup. Ct., No. 10-1259, case below United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), brief filed 10/3/11, argument 11/8/11. GPS Surveillance--Search and Seizure--Warrant Requirement--Associational Privacy. Joint amicus curiae brief of the National Association of Criminal Defense Lawyers, Brennan Center for Justice at New York University School of Law, First Amendment Lawyers Association, District of Columbia Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, and the Ohio Association of Criminal Defense Lawyers. Argument: The decision of the D.C. Circuit Court of Appeals should be affirmed. Warrantless GPS surveillance imposes an unacceptable burden on First Amendment associational rights, as well as Fourth Amendment privacy rights. The warrant requirement is minimally burdensome, as illustrated by the facts of this case. There is nothing about the nature of motor vehicles that justifies a blanket exception to the warrant requirement, and the automobile exception manifestly does not apply to warrantless GPS tracking. Authors: Jeffrey T. Green, co-Chair of NACDL’s Amicus Curiae Committee and partner at Sidley Austin LLP in Washington, DC; Susan J. Walsh of Vladeck, Waldman, Elias & Engelhard in New York City; Professor Sarah O’Rourke Schrup of the Northwestern University Supreme Court Practicum in Chicago, Ill.; and Executive Director Norman L. Reimer and Deputy Director of Public Affairs & Communications Ivan J. Dominguez of NACDL in Washington, DC.

United States v. Katzin, 3rd Circuit, No. 12-2548, decision below, Criminal Action No. 11-226, 2012 WL 1646894 (E.D. Pa. May 9, 2012), brief filed 11/13/12. Fourth Amendment—GPS—Vehicles--Warrants—Probable Cause—Exclusionary Rule--Reasonable Suspicion--“Special Need” Searches—Automobile Exception--Privacy. Joint Amicus curiae brief of the American Civil Liberties Union Foundation, the ACLU Foundation of Pennsylvania, the Electronic Frontier Foundation, and the National Association of Criminal Defense Lawyers in support of affirmance of the district court. Argument: Tracking a car by physically attaching a GPS device to it requires a warrant based on probable cause, without exception. The District Court correctly applied the exclusionary rule because the FBI agents did not rely on binding appellate precedent. Authors: Ben Wizner, Catherine Crump, and Nathan Wessler, American Civil Liberties Foundation, New York, NY; Witold J. Walczak and Sara J. Rose, ACLU Foundation of Pennsylvania, Pittsburgh, PA; Hanni Fakhoury and Marcia Hoffman, Electronic Frontier Foundation, San Francisco, CA; and Peter Goldberger, Ardmore, PA, for NACDL.

In Re Appeal from July 19, 2002 Decision of the United States Foreign Intelligence Surveillance Court, U.S. Foreign Intelligence Surveillance Ct. of Rev., No. 02-001; filed 9/19/2002. Fourth Amendment Search & Seizure – Probable Cause – Electronic Surveillance – Foreign Intelligence Information. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of a 2002 decision of the United States Foreign Intelligence Surveillance Court imposing certain “minimization requirements” on an order authorizing electronic surveillance of an “agent of a foreign power” who is a American citizen. Argument: The Fourth Amendment requires a warrant and probable cause to conduct electronic surveillance of an American citizen where the “primary” purpose of the surveillance is criminal investigation, even if the collection of foreign intelligence information is a “significant” secondary purpose. The USA PATRIOT Act in 2001 unconstitutionally amends the Foreign Intelligence Surveillance Act (FISA) to permit the Department of Justice (DOJ) to conduct warrantless electronic surveillance of an American citizen when foreign intelligence is a “significant purpose” rather than the “primary purpose.” FISA’s so-called “privacy protections” are “illusory” and do not “justify abandoning the Fourth Amendment warrant and probable cause requirements.” Authors: John D. Cline and Zachary A. Ives, Freedman, Boyd, Daniels, Hollander, Goldberg, & Cline P.A., Albuquerque, NM; Joshua Dratel, New York, NY.

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