I took a Legal Writing course in the Spring of 2018. The following is an office memorandum I wrote in response to a mock case, determining its connection to 4th amendment violations.

3101 and Associates

114 Prescott, Louisiana State University

OFFICE MEMORANDUM

TO:                  Lindsay Head, Esq.

FROM:           Chanelle Trahan

DATE:             April 3, 2018

RE:                  Adriana Parsons Case

Summary of Issues and Answers

1. GPS Tracking Via a Cell Phone: Our potential client, Adriana Parsons, believes Agent Fox violated her Fourth Amendment privacy rights. Agent Fox gathered evidence of her drug activity via a GPS tracking app that he downloaded onto her cell phone. She did not give consent to the app’s downloading, nor was she aware of its existence. Does GPS tracking via a cell phone constitute a search of personal property against a reasonable expectation of privacy, and is the method of GPS tracking via an app considered a physical intrusion?  

Short Answer:  According to cases surrounding the Fourth Amendment, GPS tracking via a cell phone is not a search of personal property but rather of geographic location. A tracking device does not constitute a search if the individual does not have a reasonable expectation of society. Leaving an unlocked cell phone at a bar does not imply a reasonable expectation of privacy. Downloading an app is not a physical intrusion because it does not involve the installation of a physical device into a discrete location.

2. Reasonable Suspicion: Before downloading the GPS tracking device onto Ms. Parsons’ cell phone, Agent Fox knew she went on vacation with a known drug dealer, paid in cash for her hotel suite, appeared suspicious around the police, carried thousands of dollars in cash rolls, and mentioned her connections to Agent Fox personally. Did Agent Fox have reasonable suspicion to suspect Ms. Parsons of drug activity, or did he unnecessarily profile her?

         Short Answer:  According to cases surrounding the Fourth Amendment, multiple

behaviors that generally indicate drug activity combined constitute reasonable suspicion. No one of these behaviors alone would yield reasonable suspicion, but the combination increases the likelihood of an individual’s involvement in drug activity.

Facts of the Case

            An anonymous informant contacted the FBI about cocaine at a South Camino residence occupied by Lil Biggs and Adriana Parsons. FBI Agent Fox began surveillance. He saw several individuals with prior drug arrests leave the South Camino residence with small packages. Lil Biggs and Ms. Parsons joined Lady Lola, a known drug dealer, on a vacation in San Diego. While undercover, Agent Fox observed that they paid in cash for their hotel suite and appeared suspicious around the police. Ms. Parsons wore a black jumpsuit with gold jewelry and got into a Chevy Impala with tinted windows. One night at the hotel’s bar, she approached Agent Fox. She mentioned her “connections” to him and showed him her thousands of dollars in cash rolls. When Ms. Parsons left, she abandoned her unlocked cell phone at the bar. Agent Fox downloaded a GPS tracking app onto her phone, and Ms. Parsons retrieved the phone the next morning.

Agent Fox downloaded the app onto Ms. Parsons’ cell phone because he believed she was involved in drug activity. The app revealed her travels from her South Camino home with Lil Biggs to Lady Lola’s Wade Walk residence. Based on the evidence, Agent Fox obtained a search warrant for the residences. The officers found a large amount of cash and cocaine at the residences and arrested Ms. Parsons. The trial court concluded that Agent Fox had probable cause to suspect Ms. Parsons of drug activity. Additionally, the court held that she had no reasonable expectation of privacy for her movements because she travelled along public streets. The judge sentenced her to fifteen years to life in prison, and the California Court of Appeals affirmed.

Discussion

1. Conclusion: The Fourth Amendment

The case involving our potential client, Adriana Parsons, concerns the Fourth Amendment. The Fourth Amendment protects individuals from “unreasonable searches and seizures” U.S. Const. Amend. IV.

2. Rules Pertaining to the Case

The following rules pertaining to the case come from the Court’s rulings in Riley v. California, United States v. Karo, United States v. Jones, and United States v. Sokolow:

     Issue #1: GPS Tracking Via a Cell Phone

            A. Riley v. California, 573 U.S. __ (2014)

            A search of geographic location via a cell phone does not infringe upon Fourth Amendment personal property rights. In Riley, the Court held that officers must obtain a warrant before searching data on an arrested individual’s cell phone. The arresting officer pulled Riley over for expired registration tags and found that he was driving with a suspended license. The officer searched Riley’s vehicle according to procedure and found two handguns associated with a gang shooting. The officer arrested Riley and searched his cell phone, finding evidence of his gang affiliation. Justice Roberts delivered the majority opinion based on Chimel v. California, 395 U.S. 752 (1969). Chimel laid the foundation for the search incident to arrest (SITA) doctrine. SITA holds that in order for an arresting officer to search an arrested individual’s property on his person, the search must be “needed to protect officer safety or to preserve evidence” from being destroyed or concealed. Riley at 7. The Court later interpreted the SITA doctrine’s exception as limited to “personal property…immediately associated with the person of the arrestee.” United States v. Chadwick, 433 U.S. 1 (1977). In Riley, the Court applied the SITA doctrine and determined that the exceptions did not apply, so the Court excluded the evidence.

            In Ms. Parsons’ case, Agent Fox downloaded a GPS tracking app onto her cell phone, thereby searching her geographic location. Unlike a cell phone, geographic location is not personal property. He did not conduct a search of the data on her cell phone to find her communications with Lady Lola. Some may argue that downloading the GPS tracking app constituted a search of her cell phone, and this search was not necessary to protect officer safety or to preserve evidence. At the time of the tracking app’s downloading, Ms. Parsons was not under arrest, therefore the SITA exceptions do not apply. Agent Fox downloaded the app to search for evidence of her travels to the Wade Walk residence. Agent Fox’s search was, therefore, not a search of Ms. Parsons’ cell phone, and the search did not violate her personal property rights. Thus, a search of geographic location using a cell phone is not a search of the cell phone’s data and does not violate the Fourth Amendment.

            B. United States v. Karo, 468 U.S. 705 (1984)

            As long as the information obtained from a tracking device is also obtainable using visual surveillance, and the individual does not have a reasonable expectation of privacy at the time of installation, GPS monitoring does not violate the Fourth Amendment. In Karo, the Court held that the installation of an electronic beeper violates the Fourth Amendment if the evidence was not also obtainable using visual surveillance. DEA agents installed an electronic beeper tracking device into a can of ether with the owner’s consent. Karo, who intended to use the ether to make cocaine, purchased the can. The agents tracked the can’s movements to its final location in a cabin. Officers then went to the cabin and arrested Karo. Justice White delivered the majority opinion based on United States v. Knotts, 460 U.S. 276 (1983). In Knotts, the Court held that GPS tracking via an electronic beeper was not a Fourth Amendment violation if “it revealed no information that could not have been obtained through visual surveillance.” Id. at 281. In Karo, the Court built upon the Knotts holding and determined that the beeper’s installation was not a privacy violation. Karo had no reasonable expectation of privacy during the installation since the can was not yet in his possession. The GPS tracking of the can to the cabin was not a privacy violation since the agents could have tracked this movement through visual surveillance. However, using the beeper to track the can’s location within the cabin, “a location not open to visual surveillance,” violated the Fourth Amendment. Karo at 714. Therefore, Justice White concluded that Karo had a reasonable expectation of privacy inside the cabin.

            In Ms. Parsons’ case, Agent Fox did not use the tracking app to determine the cell phone’s location within the residences. Rather, he used the tracking app to monitor Ms. Parsons’ travels. He could have also gathered this information via visual surveillance, so his GPS tracking was not a Fourth Amendment violation. Some may argue that the app’s installation fails the first test established in Karo of reasonable expectation of privacy during the device’s installation. Just as Karo was not in possession of the can at the time of installation, Ms. Parsons was not in possession of her phone at the time of installation. Although Ms. Parsons was the owner of her cell phone, and she did not technically give consent, she left her unlocked phone at the bar next to Agent Fox. She abandoned her property and, therefore, relinquished control of it. She could have no reasonable expectation of privacy because she left her phone unlocked for anyone to tamper with. This further emphasizes, along with my conclusion based on Riley, that the downloading of the tracking app was not a search of Ms. Parsons’ cell phone. Although she was intoxicated, the fact that she willingly abandoned her property makes us unlikely to win the case. Thus, GPS tracking that is also available via visual surveillance and that, upon installation, does not violate an individual’s reasonable expectation of privacy is not a Fourth Amendment violation.

            C. United States v. Jones, 565 U.S. __ (2012)

            Unlike the physical installation of a tracking device in a discrete location on a vehicle, downloading a tracking app onto a cell phone is not a physical intrusion. In Jones, the Court held that placing a GPS tracking device on a vehicle is a form of a search according to the Fourth Amendment. FBI agents installed the device on Jones’ car for suspected narcotics violations and tracked his car’s movements. Justice Scalia delivered the majority opinion based on United States v. Chadwick, 433 U.S. 1 (1977). The Chadwick ruling established a vehicle as an “effect” according to the Fourth Amendment. Id. at 12. In Jones, the Court identified the tracking of a car’s movements as a “search.” Jones at 3. The Court also identified the tracking device’s installation as a physical intrusion, therefore violating the trespass doctrine. However, the Court did not rule all methods of unwarranted GPS surveillance unconstitutional. Rather, GPS surveillance via the installation of a device tracking a car’s movements is a violation of reasonable expectation of privacy.

            In Ms. Parsons’ case, the GPS tracking occurred via a cell phone app rather than the physical installation of a tracking device. Some may argue that downloading the tracking app constituted a physical intrusion and, therefore, violated the trespass doctrine. Downloading the app was not, however, a physical intrusion. In Jones, FBI agents physically placed the tracking device onto the vehicle. Agent Fox downloaded the tracking app onto Ms. Parsons’ phone digitally. In the current technological age, apps such as Snapchat and Facebook have access to users’ geographic locations at all times. This, along with the fact that she abandoned her property, eliminates Ms. Parsons’ reasonable expectation of privacy for her geographic location via her cell phone.

Although reasonable expectation of privacy was not the main focus of Justice Scalia’s opinion in Jones, it was the focus of the concurring opinions. Since Justice Scalia is no longer a Supreme Court Justice, the Court is more likely to focus on reasonable expectation of privacy, as it did previously in Knotts and Karo. Therefore, even if the Court determines that the app’s downloading does constitute a trespass, we will be unlikely to win the case based on the lack of a reasonable expectation of privacy. In his concurring opinion, Justice Alito specifically discussed the importance of the length of surveillance to an individual’s reasonable expectation of privacy, stating that “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Jones at 13. Justice Alito’s concern with long-term surveillance was that the data would reveal substantial personal information. Some may, therefore, argue that Agent Fox’s surveillance was not short-term, so it violated Ms. Parsons’ reasonable expectation of privacy. While Agent Fox did collect evidence of her regular travels, the monitoring focused specifically on her travels between her South Camino residence and Lady Lola’s residence. This information did not reveal any personal records outside of what was necessary to gather evidence for the case. Additionally, unlike the discrete location of a physical tracking device on the bottom of a car, an app’s existence is not hidden. An individual can see an app on their home screen simply by opening their phone. The fact that Ms. Parsons did not notice the new app does not change the fact that it was in plain sight. Thus, downloading a tracking app onto a cell phone is not a physical intrusion and does not violate the trespass doctrine.  

     Issue #2: Reasonable Suspicion

            D. United States v. Sokolow, 490 U.S. 1 (1989)

            When multiple circumstances combine to cause an individual to appear reasonably suspicious, a warrantless search does not infringe upon Fourth Amendment privacy rights. In Sokolow, the Court held that if all of the circumstances surrounding a case point to reasonable suspicion, then the search is not a Fourth Amendment violation. DEA agents stopped Sokolow in the Honolulu International Airport for appearing reasonably suspicious of drug activity and conducted a warrantless search of his luggage. The agents based their reasonable suspicion on the following: he paid in cash for his plane tickets, he traveled under a fake name, his original destination was Miami (a drug trafficking source city), he stayed in Miami for only 48 hours, he appeared nervous, and he did not check any luggage. In the search, the agents found over 1,000 grams of cocaine. Justice Rehnquist delivered the majority opinion based on United States v. Cortez, 449 U.S. 411 (1981). The Cortez ruling held that a stop of an individual for suspected criminal activity must take into account “the totality of the circumstances—the whole picture.” Id. at 411. Any one behavior reflecting possible criminal activity does not necessarily indicate criminal activity, but many behaviors combined mark an individual as reasonably suspicious. However, one behavior that the Court considered particularly suspicious was the fact that Sokolow paid $2,100 in cash from rolls of $20 bills. The Court noted that most business travelers pay for airline tickets via a method that provides a record for business expense purposes, such as by credit card or check. Additionally, most travelers do not carry around thousands of dollars worth of $20 bill rolls.

In Ms. Parsons’ case, Agent Fox’s suspicion was reasonable. She paid in cash for her hotel suite, as Sokolow did for his plane tickets. Agent Fox knew of her association with Lady Lola and their vacation together before tracking her movements to Lady Lola’s residence. On their vacation, Ms. Parsons and Lady Lola appeared suspicious around police, also as Sokolow did in the airport. Additionally, Ms. Parsons showed Agent Fox her rolls of thousands of dollars in $100 bills and spoke to him about her connections. Carrying such large quantities of cash is unusual, as the Court noted in Sokolow, and generally indicates drug activity. He also observed individuals with prior drug violations leave Ms. Parsons’ home with small packages. He did not stop the individuals and search the packages, which would violate the Court’s holding in Henry v. United States, 361 U.S. 98 (1959): “The police must have reasonable grounds to believe that the particular package carried by the citizen is contraband.” Id. at 104. Rather, what Agent Fox observed prior to his search of Ms. Parsons’ geographic location gave him reasonable suspicion that she was involved in drug trafficking. Some may argue that Agent Fox’s suspicion was based on profiling and is, therefore, not valid. While the Court may agree that Ms. Parsons’ clothing and car choices do not make her reasonably suspicious, given her many other suspicious behaviors similar to Sokolow, the Court will most likely take all of the circumstances into account. Thus, a search conducted regarding an individual who exhibits several reasonably suspicious behaviors does not violate the Fourth Amendment.

Conclusion

            Given the rules established by the Court in Riley, Karo, Jones, and Sokolow, we should not accept Adriana Parsons’ case. It is not likely that we will be able to get the previous ruling overturned. GPS tracking via a cell phone is not a personal property violation because it does not involve searching the data on the phone. Rather, it is a search of geographic location. Additionally, in abandoning her phone at the hotel bar, Ms. Parsons did not have a reasonable expectation of privacy, again negating the claim that Agent Fox conducted a search of her cell phone. Agent Fox could also have gathered the data on Ms. Parsons’ travels through visual surveillance. He did not use the tracking device to locate her phone within the residences, which would have been a privacy violation. Downloading the tracking app was also not a physical intrusion because Agent Fox did not physically install a tracking device into a discrete location, as a cell phone app is not discrete. Lastly, Ms. Parsons exhibited multiple behaviors associated with drug activity, giving Agent Fox the reasonable suspicion necessary to track her travels.

            If Lady Lola also wishes to retain our services, we should not represent her either. While possible violations of Ms. Parsons’ privacy rights may be questionable, there were certainly no violations of Lady Lola’s Fourth Amendment rights. Agent Fox did not search Lady Lola’s cell phone or geographic location. He secured the search warrants based on the information from Ms. Parsons’ tracking data, giving him reasonable suspicion to believe that cocaine was present at her Wade Walk residence.