Thief Demands Right to Privacy

[Joe Guy]

Stolen phone not private, court says

When San Francisco police used a cell phone's GPS system to track down a suspected thief, his lawyer contended the search violated his right to privacy.

The problem with that argument, a state appeals court said Tuesday, is that the thief had stolen the phone, along with the owner's wallet and handbag. That cuts against his privacy claim, the court said.

The case dates from November 2009, when a man with a handgun confronted a couple near Fort Mason and demanded their belongings. The man handed over his wallet, but the woman ran across the street and threw her handbag under a car. The thief retrieved the handbag and fled, the First District Court of Appeal said.

When the couple contacted police, the woman, Carolyn Fey, told officers the handbag contained both her wallet and a cell phone with a GPS tracking device. Fey signed a release form, and the provider, Sprint PCS, agreed to send a "pinging" signal to the phone.

The tracking started about 45 minutes after the robbery, and within 15 minutes police had traced the phone to the Mission District, stopped a car, and arrested Lorenzo Barnes, along with a cell phone and a purse that matched Fey's description, the court said.

Fey also identified Barnes as the robber. After unsuccessfully challenging the search, he pleaded guilty to armed robbery and was sentenced to 13 years and 8 months in prison, and then appealed. Barnes' appeal relied on last year's U.S. Supreme Court ruling that barred police from using evidence they obtained by attaching a GPS tracking device to a suspect's vehicle.

But the appeals court said the suspect's right of privacy in that case didn't apply to someone who had stolen the device that was used to catch him - particularly when the phone's owner had consented to its use in tracking him.

"Did (Barnes) have a legitimate expectation of privacy in the cell phone he had stolen? The answer is an emphatic 'No,' " said Justice James Richman in the 3-0 decision.

source

[dales]

After unsuccessfully challenging the search, he pleaded guilty to armed robbery and was sentenced to 13 years and 8 months in prison....

FRESH FISH!

[rubato]

Props for creativity. Good (attempted) use of new technology to blow a little legal smoke. Not likely to work though.

yrs,
rubato

[dales]

Creativity?

He's a dumass, he gets 13 years for stealing a mobile!

[Long Run]

He's a dumass, he gets 13 years for stealing a mobile!

No doubt, but this crime is probably the tip of the iceberg in his life of criminal acts, and this crime did include armed robbery.

[rubato]

Creativity?

He's a dumass, he gets 13 years for stealing a mobile!

The creativity was that of his shyster. Thieves do not generally have nor demonstrate creativity.





yrs,
rubato

[dales]

Yeah, he's he's a dumass.

[Lord Jim]

The creativity was that of his shyster. Thieves do not generally have nor demonstrate creativity.

My take on this was exactly the opposite....

I was puzzled when I saw that it was a lawyer who had filed this appeal motion rather than the perp. There was nothing clever about this; it was idiotic to think that there was a snowball's chance in hell that an appeals court would find a presumption of a right to privacy for a stolen phone....

To me this seemed much more like one of those court clogging nuisance motions that jail birds cook up when they have too much time on their hands, rather than something that a guy who's time was money would actually have wasted his time on....

Maybe the lawyer's a relative....

[Sue U]

The "shyster" in this case (Boalt Hall '81) was appointed by the court to represent the defendant and is a highly respected criminal law expert and legal scholar who is a staff attorney at the First District Appellate Project:

The First District Appellate Project (FDAP) is a non-profit law office, created in 1985 under the auspices of the Bar Association of San Francisco in conjunction with the First Appellate District of the California Court of Appeal and the Administrative Office of the Courts. FDAP's mission is to ensure quality representation of indigent appellants in criminal, juvenile, dependency and mental health appeals in the First District Court of Appeal.

FDAP carries out its mission by: (1) administering the appointment of counsel function of the court, pursuant to California Rules of Court, rule 8.300(e); (2) providing administrative assistance to the Court of Appeal in processing notices of appeal; (3) assisting a panel of approximately 325 attorneys who are appointed to represent indigent appellants in the First District; (4) providing training and resource materials to the panel of attorneys; and (5) undertaking the direct representation of some indigent appellants in the First District.

Although framed by the Court of Appeal as a "right to privacy in stolen property," the legal issues raised by defendant on appeal actually concerned much broader concepts of electronic surveillance as justification for police action, in the wake of the U.S. Supreme Court's decision in United States v. Jones, 565 U.S. ___, 132 S.Ct. 945 (2012) (reversing a conviction where GPS tracking was found to violate 4th Amendment protections). A GPS signal might (or might not) indicate where a device is, but that doesn't necessarily tell you anything about a criminal act or who may have committed it. The bigger question is whether merely being in the vicinity of a GPS signal, located by means of privately-supplied and uncorroborated information, the accuracy of which has not been verified, is sufficient for a warrantless intrusion by police. This is not a trivial issue, although focusing only on the facts of this particular case can obscure the constitutional implications.

[Joe Guy]

If I'm understanding this correctly, by the defense raising the issue of using the GPS to find and arrest the crook, they have made it clear that their defense was no defense at all.

I think that's why many non lawyers see things like this as a waste of time. We see it as a logical conclusion rather than a legal one.

[Sue U]

If I'm understanding this correctly

You're obviously not. The issue raised on the appeal is whether the police action was permissible in the first place. Say the robber (who had stolen a purse with a phone in it) had ditched the phone on the street, where it was found and picked up by someone else. Would the police have been justified in using the phone's GPS location to enter that person's home or pull over his car or stop him on the street to detain him for questioning and/or arrest? What if the police in entering that person's home, or car, or "frisking" his person found a bag of marijuana? Or found he was having sex with his neighbor's spouse? Is the fact that he may have merely found a cell phone sufficient to form a reasonable suspicion (forget even getting near "probable cause") that he was engaged in some criminal activity requiring police intrusion into his life? This is the slippery slope that leads from security against "unreasonable search and seizure" to "probable cause" to "reasonable suspicion" to "oh hell, he looks guilty to me."

I am taking no position on the outcome in this case. I am merely pointing out that it does raise substantial constitutional issues, with the potential for further expansion of unchecked police power. If you can't see that, it's a good thing we have lawyers who can.

[Crackpot]

You would say that

[Joe Guy]

If I'm understanding this correctly

You're obviously not. The issue raised on the appeal is whether the police action was permissible in the first place.

In the article I posted it said that the appeals court ruled that the thief had no right to privacy in this case.

How am I wrong?

[Sue U]

First, you might want to try reading the court's actual decision, rather than what a newspaper says about it. But even in the article you posted as the OP, it said:

... After unsuccessfully challenging the search, he pleaded guilty to armed robbery and was sentenced to 13 years and 8 months in prison, and then appealed. Barnes' appeal relied on last year's U.S. Supreme Court ruling that barred police from using evidence they obtained by attaching a GPS tracking device to a suspect's vehicle.

The appeal was from the trial court's denial of his motion to suppress evidence obtained in what he argued was an illegal search in violation of the 4th Amendment. If the basis for the stop were found to be improper, the evidence obtained as a result would be suppressed and the conviction overturned.

A "reasonable expectation of privacy" is a judicial gloss on the 4th Amendment's prohibition of unreasonable search and seizure, particularly as applied to surveillance techniques. It is part of the rationalization used here by the Court of Appeal to rule that what the police did to identify and detain the suspect did not violate that prohibition. One of the things that makes a "search" "unreasonable" is the target's expectation of privacy. (This is what all the shouting is about regarding the government's tracking of who is telephoning whom.) If you don't have a reasonable expectation of privacy in something, then the government is free to "search" it. But there are other factors that make a search -- and even a mere "stop" -- unreasonable as well. If you are not flagrantly in the act of committing a crime (or fleeing the scene), police can't just "detain" you -- even temporarily, and without a formal arrest -- unless there is at least an objectively "reasonable suspicion" that you are engaged in criminal activity. At issue in this case was whether a GPS signal from a stolen phone, without more, is sufficient to generate that "reasonable suspicion." (The court here actually said it wasn't, because they found it to be "only a part of the objective reasons leading to the decision to detain.")

Saying that "there is no expectation of privacy in stolen property" is only a way of re-characterizing the police's search-and-seizure procedure here so as to fit it within the bounds of the 4th Amendment, and is a rather glib dismissal of the more difficult and troubling issues that are implicated. But the goal of any judicial decision is to actually decide as little as is necessary to dispose of the case, and this is the way the Court of Appeal did just that.

[Joe Guy]

So, the defense offered a comparison of this case to another in which the court ruled that using a GPS attached to a car in order to find and arrest someone is a violation of the fourth amendment.

This court responded by making it clear that their defense was no defense at all because it is not comparable to the other case.

The appeal lost.

And I'm wrong?

[Sue U]

No, now you're saying something different. One of the methods for adjudicating cases is to analyze precedential (or at least persuasive) case law and determine how it is similar to and how it is different from the case under consideration, and whether it articulates principles that can or should be applied. When you have a Supreme Court case, both sides will necessarily have to use it, usually with one side arguing that it is directly comparable and requires a particular outcome here, while the other side argues that it is readily distinguishable and therefore suggests a different result. The court will have to pick one side's argument over the other, and that side will win and the other will lose. That's just how a legal argument works.

If you look at any law school casebook, it is structured the same way: It first sets out the seminal case that stands for the general legal principle, then it gives another case showing the principle applied, then another case or two illustrating an extension or limitation of the principle in different settings, and then a case in which application of the principle leads to an unexpected or seemingly bizarre result (intended to stimulate discussion and deeper consideration).

But if you have a need to be "right," be my guest.

[Joe Guy]

But if you have a need to be "right," be my guest.

I don't need to be right. I wanted an explanation as to why you said I'm wrong.

I guess you've explained something in an indirect way.

[Sue U]

Maybe I'm not understanding what you're asking me to explain. Let me try one more time.

In this case, the thief never "demanded a right to privacy." At the suppression hearing, his lawyer argued that, based on the reasoning of a then-recent federal appellate case,* using GPS tracking should be deemed an automatic violation of the 4th Amendment in every case because of privacy concerns associated with the technology generally -- not that he specifically -- or anyone else for than matter -- had a privacy interest in a stolen cell phone (or any other stolen property). As the Court of Appeal noted, it was well-settled law that there is no reasonable expectation of privacy in stolen property. (The defendant's attorney also argued that information obtained through GPS devices had not been proven to be reliable and allowable as evidence according to legal standards.)

By the time of the appeal, however, the Supreme Court had decided the Jones case, and our hero refined his argument. As the Court of Appeal phrased it:

In light of Jones, which will be discussed later, defendant has reformulated his approach to overturning his conviction. He no longer sees use of GPS technology as a per se violation of the Fourth Amendment. Continuing themes expressed at the suppression hearing, defendant reiterates the issue of “reliability” and the confidential informant analogy. Next, defendant contends that, even assuming the information provided by Sprint was reliable, “it merely established the location of the stolen phone, not the location of the suspected robber.” Finally, defendant maintains that without the GPS information, Officers Clifford and Tannenbaum had only “pedestrian facts”—i.e., “the suspect‟s race, gender and attire”—“which did not support reasonable suspicion for the stop.”

Nowhere is the defendant making an argument that he has some right of privacy in the cell phone he stole. The fact that the Court harps on this issue, even though it's not in any part the basis for the appeal, shows how desperately they wanted to shoe-horn this case into an established doctrine so as to avoid the possibility of making new law concerning a sufficient showing of "reasonable suspicion."


____________
* United States v. Maynard, 615 F.3d 544 (DC Cir. 2010)

[Big RR]

Thanks for the summary Sue. For anyone whop is interested, the full opinion can be found here:

http://www.courts.ca.gov/opinions/documents/A135131.PDF

[Crackpot]

Only for undocumented immigrants eh?s