TECHNOLOGY
“Hot Topics” for ESI in
Criminal Matters
BY RONALD J. HEDGES
E
lectronic information is all-pervasive. Moreover,
electronic information can be central to the
investigation and prosecution of criminal conduct
because it can be (1) used to locate and track
suspects, (2) evidence of criminal conduct, and (3) a
substantive component of a crime. All this means
that both prosecutors and defense counsel must
understand electronic information and how it can be
found, collected, preserved, produced in discovery,
and introduced into evidence. This becomes even
more complicated because electronic information
must “fit” into existing legal principles and rules.
This article focuses on those principles and rules
and suggests issues that investigators, attorneys, and
judges are likely to confront in the immediate future.
“STORED” VS. “REAL TIME”
ELECTRONIC INFORMATION
Most attorneys are familiar with the term “electronically
stored information” (ESI), which appears in Federal
Rule of Civil Procedure 34(a)(1). “Electronic
information,” as I use the term, is broader and includes
information that is being sought, for example, as a
crime unfolds or in “real time.” Case law on how law
enforcement can access real-time electronic information
within the confines of the Fourth Amendment is sparse.
State v. Subdiaz-Osorio, 849 N.W.2d 748 (Wisc. 2014),
illustrates various approaches to “access.” In this postRiley v. California decision, the police tracked the
defendant through his cell phone without securing a
warrant. The police were concerned that the defendant,
who was in the United States illegally, fatally stabbed
his brother, borrowed a car and fled the scene, was
trying to escape to Mexico, and was carrying the
murder weapon. The Wisconsin Supreme Court upheld
the warrantless tracking but, in doing so, issued six
separate opinions in reaching its result. Another
example of real-time tracking is State v. Feliciano, 132
RONALD J. HEDGES is a senior
counsel with Dentons US LLP. A
former United States magistrate
judge in the United States District
Court for the District of New
Jersey, he has extensive experience
in e-discovery and in management of
complex civil litigation matters.
CRIMINAL JUSTICE n Fall 2016 A.3d 1245 (N.J. 2016), in which the court upheld the
constitutionality of a “roving wiretap” under the New
Jersey Wiretap Act upon a judicial finding that a suspect
switched telephones to evade detection. These and other
decisions demonstrate that real-time interception raises
significant constitutional and statutory questions.
REASONABLE EXPECTATIONS OF PRIVACY
Of course, every prosecutor, defense counsel, and judge
recognizes this phrase from Justice Harlan’s concurring
opinion in Katz v. United States, 389 U.S. 347 (1967).
Likewise, everyone recognizes that privacy has a
subjective and objective component and that both must
exist for a privacy right to be recognized. Some mush
for blackletter law. The challenge, however, is how to
fit a new source or type of ESI into Justice Harlan’s
framework. A perfect example comes from United
States v. DE L’Isle, 825 F.3d 426 (8th Cir. 2016), in
which the defendant appealed from the district court’s
denial of his motion to suppress evidence derived from
the scanning of magnetic strips on credit, debit, and gift
cards seized from the defendant’s vehicle at the time of
his arrest. The defendant argued that the information
contained on the strips was a search within the meaning
of the Fourth Amendment. A majority disagreed: “Even
if DE L’Isle had an actual, subjective expectation of
privacy in the information found in the magnetic
strips on the cards, this alleged privacy interest is not
one society is prepared to endorse.” (Id. at 432.) The
dissenting judge would have remanded to develop
evidence on “whether there are significant technological
barriers to an individual rewriting information on the
magnetic strips of their cards.” (Id. at 434 (Kelly, J.,
dissenting).) DE L’Isle demonstrates how courts will
have to grapple with ESI.
FEDERAL AND STATE DIVERGENCE ON THE
WARRANT REQUIREMENT
In United States v. Graham, 824 F.3d 421 (4th Cir.
2016), the en banc Fourth Circuit Court of Appeals
ended a circuit split on whether law enforcement was
required to secure a warrant for noncontent historical
cell site location information (CSLI). The circuit split
arose from the earlier panel decision in Graham, which
imposed a warrant requirement and was contrary to the
rulings of other courts of appeals. Unless and until the
United States Supreme Court rules otherwise, CSLI can
be secured through an order issued by a judge under
the Stored Communications Act.
There appears to be predictability at the federal
level in the context of historical CSLI. However,
a different picture emerges at the state level. One
example comes from Commonwealth v. Augustine,
4 N.E.3d 846 (2014), in which the Massachusetts
Supreme Judicial Court interpreted the Massachusetts
Constitution to require a warrant to search historical
CSLI. In doing so, the court rejected the “third-party
43
Published in Criminal Justice, Volume 31, Number 3, ©2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent
of the American Bar Association.
doctrine” articulated by the United States Supreme Court
in Smith v. Maryland, 442 U.S. 735 (1979), because of the
“nature of cellular telephone technology and CSLI and the
character of cellular telephone use in our current society.”
(Augustine, 4 N.E.3d at 859.) State constitutions can afford
protections beyond those guaranteed in the Bill of Rights, and
attorneys and judges in state proceedings may well compare
and contrast state with federal ones.
EX ANTE CONDITIONS ON THE ISSUANCE OF
SEARCH WARRANTS
Debate continues on this question: Should an issuing
magistrate judge impose conditions on the manner in
which law enforcement executes a search of the content of
an electronic device, for example, a cell phone? In United
States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162
(9th Cir. 2010), the en banc Ninth Circuit Court of Appeals
“recommended” several such conditions. Since then, federal
courts have divided on imposing conditions, the latest being
United States v. Brooks, No. 15-11015, slip op. at 4 (11th
Cir. Apr. 15, 2016) (per curiam), which held that “nothing
Deepening a Split
[T]he sentencing judge normally does not yet
know enough about the behavior that underlies
(or will underlie) a sentence that has not yet been
imposed. Normally the sentencing judge does not
know, for example, (a) what the sentence will be,
(b) whether the behavior underlying that later
sentence constitutes part of the same course of
behavior that underlies the present sentence or,
instead, is totally separate from the behavior
underlying the present sentence, or (c) is partly
the same and partly different. Even if the judge
has an idea about what will happen, he does not
know precisely what will happen; and precision
in this matter is important.
(Setser, 132 S. Ct. at 1476 (Breyer, J., dissenting).)
Setser is, of course, the law with regard to subsequent
state sentences. But for the reasons articulated by Justice
Breyer, criminal defendants facing charges in multiple
federal districts should benefit from Almonte-Reyes
and similar decisions. As those decisions point out, the
second sentencing judge will have more information
to make a better informed decision rather than the first
judge jumping to a conclusion based on guesswork and
an incomplete record. In all other cases, however, it will
be up to Congress to consider any amendment to § 3584(a).
44
requires a search warrant to contain a ‘search protocol’
specifying the computer files to be searched.” This
appears to be a question that the United States Supreme
Court is unlikely to address although, consistent with
my comments above, states may weigh in. (See In re
Appeal of Application for Search Warrant, 71 A.3d
1158 (Vt. 2012), cert. denied, 133 S. Ct. 2391 (2013).)
CONCLUSION
This article touches on several topics. Not surprisingly,
there are others, including (1) efforts by law enforcement to
secure access to content of electronic devices and whether
those efforts implicate the Fifth Amendment privilege
against self-incrimination, and (2) possible consequences
of the failure of prosecutors to produce ESI. Another is
the foundation necessary for the introduction of evidence
derived from ESI, which I explored in an earlier Criminal
Justice magazine article and was most recently addressed
by a state court of last resort in State v. Buhl, 138 A.3d 868
(Conn. 2016). Perhaps a later article could pursue these and
yet more topics. n
CONT INU ED F ROM PA GE 2 4
CONCLUSION
The First Circuit’s recent decisions in Wright and
Almonte-Reyes clarified important issues of federal
sentencing law. The Almonte-Reyes decision concerning
multiple sentences is fairly straightforward, follows
from Supreme Court dicta, and agrees with every other
circuit to decide the issue to date. Thus, it adds to an
emerging consensus about whether federal sentencing
courts can consider anticipated, but not-yet-imposed,
federal sentences from other proceedings (answer: no).
Meanwhile, the Wright decision raises almost as many
questions as it answers about the statutory maximum
penalty for criminal contempt—and more broadly, for
offenses that have no clear statutory maximum penalty
and are not expressly classified as a particular grade of
felony. These lingering questions include whether the
Supreme Court will intervene to resolve the deepening
circuit split over 18 U.S.C. § 401, whether the First
Circuit should have taken into account the many
collateral consequences that attach to convictions for
Class A felonies, and whether the appeals court’s logic
would similarly apply to all criminal statutes that do
not explicitly include a statutory maximum penalty
or felony classification. Criminal practitioners should
watch closely to see if other circuit courts jump into the
fray and, more importantly, whether the Supreme Court
considers the issue worthy of review. n
CRIMINAL JUSTICE n Fall 2016
Published in Criminal Justice, Volume 31, Number 3, ©2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent
of the American Bar Association.