Our electronic age has decidedly outdated the go-to analyses for questions about the Fourth Amendment, leaving courts to reach for nondigital analogs for new technology. This reaching sometimes produces shaky results, leading to unclear guidelines for local police officers. To demonstrate, here is a list, in no particular order, of three of the most-questionable analogies.
1. A deleted file = curbside trash
Hat tip to Volokh Conspiracy’s Orin Kerr for recently pointing out United States v. Morgan, Crim No. 03-25-DLB (E.D. Ky. October 15, 2003), which addresses a defendant’s attempt to suppress child-pornography image files from his hard drive and screenshots of the images obtained by his wife. After determining that the wife acted as a private actor in obtaining the screenshots (making them admissible), the court discussed the defendant’s efforts to delete his files using the program “Internet Eraser”:
By attempting to delete the images, Defendant relinquished any expectation of privacy he had in the images themselves. See California v. Greenwood, 486 U.S. 35, 37 (1988) (Defendant has no reasonable expectation of privacy in his curb-side trash). . . . [B]y attempting to delete the pornographic images, Defendant was in essence, trying to throw out the files. In that regard, the facts are similar to Greenwood and its progeny. For these reasons, the Court concludes that Defendant’s relinquishment of any reasonable expectation of privacy in the pornographic images by attempting to delete the images is an alternative basis for denying the suppression motion.
As commentators on Kerr’s post noted, unsuccessfully deleting files is a lot more like partially burning your trash than setting out garbage, as in the latter situation you know the garbage man will have access to it.
2. A cellphone = a cigarette box or similar containers
When a person is arrested, police officers are allowed to search within containers found on the person, as in United States v. Robinson, where the Court ruled permissible an officer’s actions of pulling drugs out of a cigarette box found inside a person’s jacket. Some courts have applied this analysis to data stored on cellphones. See United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007).
The problems with this approach have been explained by the Seventh Circuit:
The potential invasion of privacy in a search of a cell phone is greater than in a search of a “container” in a conventional sense even when the conventional container is a purse that contains an address book (itself a container) and photos. Judges are becoming aware that a computer (and remember that a modern cell phone is a computer) is not just another purse or address book. “[A]nalogizing computers to other physical objects when applying Fourth Amendment law is not an exact fit because computers hold so much personal and sensitive information touching on many private aspects of life. . . . [T]here is a far greater potential for the `inter-mingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” United States v. Lucas, 640 F.3d 168, 178 (6th Cir.2011); see also United States v. Walser, 275 F.3d 981, 986 (10th Cir.2001); United States v. Carey, 172 F.3d 1268, 1275 (10th Cir.1999); cf. United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1175-77 (9th Cir.2010); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir.2009).
3. DNA evidence = fingerprints
Again, hat tip to Orin Kerr, who points out this language from Raynor v. State from the Court of Special Appeals of Maryland:
DNA evidence, when used for identification purposes only, is akin to fingerprint evidence. And, although fingerprint evidence is suppressible if it is obtained in the course of an unlawful detention, see Hayes v. Florida, 470 U.S. 811, 816, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985); Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), the fingerprinting process itself “involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search.”See United States v. Dionisio, 410 U.S. 1, 15, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (quoting Davis, 394 U.S. at 727, 89 S.Ct. 1394).
Thus, even if appellant could demonstrate a subjective expectation of privacy in his DNA profile, he nonetheless had no objectively reasonable expectation of privacy in it because it was used for identification purposes only. As in Williamson, the police were in lawful possession of the item from which the DNA was collected. In Williamson, the cup from which the DNA was collected came into police possession when the suspect discarded it in the holding cell; here, the chair in the police barracks was, from the outset, in the possession of the police. Thus, like the analysis of a latent fingerprint, which involves no physical intrusion into the body and is used for identification purposes only, the analysis in the instant case of DNA evidence, which was in the lawful possession of the police, was not a constitutionally protected search.
Kerr explains why this analogy is questionable:
Fingerprint evidence is on the surface. It is often visible to the unaided eye, and anyone can pick it up. In contrast, obtaining a DNA sample requires extracting it from a sample, in ways that in some ways resemble drug testing of urine samples. Although the law isn’t totally clear on this, there is some authority for the view that the extraction may make a Fourth Amendment difference, see Skinner v. Railway Labor Executives Assn (1989) (holding that collection and drug-testing of a urine sample is a search, in part because of what the chemical analysis reveals). I think you can see the questionable fit here in the court’s suggestion that limiting the use of the DNA sample to identification purposes is important: It’s not clear to me how that could be right, given that the Fourth Amendment does not impose use restrictions.
There are several other questionable analogies—the many times computer record are compared to paper records, for example—though of course analogies are usually the best courts can do. Any to add to this list?