PRE- PUBLICACIÓN: 18-diciembre-2013
La Exclusionary Rule de EE.UU. y la Prueba Ilícita Penal de España
JOSÉ MANUEL ALCAIDE GONZÁLEZ
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Notas y citas / Texto breve:
La obra pretende ser una investigación jurídica de estudio y comparación de la institución procesal de la prueba ilícita o prueba inconstitucional de España con su homóloga de los EEUU denominada exclusionary rule. En el campo de la práctica forense esta institución procesal posee una trascendencia significativa y valiosa, tanto en España como EEUU, dado que puede ocasionar unas trascendentales consecuencias finales en el proceso penal. Uno de los objetivos ensayados es demostrar que aún siendo tan dispares los sistemas jurídicos y judiciales de España y EEUU en sus orígenes, la primitiva doctrina jurisprudencial de la regla de exclusión y sus limitaciones posteriores- excepciones- ha impregnado su doctrina y aplicación en los Tribunales de España (Tribunales Constitucional y Supremo). Otro de los propósitos lo situamos en la posición de mantener que la evolución de la regla de exclusión en nuestros días puede hallarse próxima a su extinción, por lo menos su variante y extensión de la prueba refleja; y su doctrina de los frutos del árbol envenenado, tanto en EEUU como en España.
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Publicado en: 2013-12-18
Southern District Opinion Allows Seizure of Emails From Host Provider With Minimal Showing of Probable Cause
A Southern District of New York Magistrate Judge last week approved the government’s ability to conduct searches and seizures of entire email accounts stored by third-party providers like Google, Microsoft, Yahoo! and Apple without having to establish probable cause that all the emails seized are evidence of a crime.1 The decision is significant not only because it is inapposite to decisions by other courts that have frowned on such wholesale incursions as violations of the Fourth Amendment, but also because it opens the door to allowing the government to seize a virtually unlimited number of emails from email hosting companies in every investigation where it only has cause to believe that a small group of emails contain evidence of criminal activity (in other words, most white collar cases).
In a memorandum opinion, Magistrate Judge Gabriel Gorenstein granted a warrant directing Google to turn over the entire contents of a Gmail user’s email account in conjunction with a money laundering investigation. The government’s search warrant application in the case directed Google to turn over “all content and other information . . . associated with” the target’s email account, including all emails sent, received or stored as drafts, all address book information and other account information. The warrant application did not contain any search protocol or other limitations and provided that law enforcement personnel would review the records produced in order to locate certain specific categories of evidence of possible violations of various money laundering statutes.
The primary issue addressed by the court was whether a search warrant seeking all emails in an account from an electronic communications service provider is appropriate where there is no probable cause to believe that the email account consists exclusively of emails within the categories of items to be seized under the warrant. The court specifically noted two recent decisions – one in the District of Columbia2 and one in the District of Kansas3 – in which courts have held that such warrant applications are overbroad and fail to establish probable cause over all of the emails sought. Those courts held that such a broad warrant application was akin to a “general warrant” that would permit the government to undertake a “general, exploratory rummaging in a person’s belongings . . . .” Both courts compared the governments’ requests to obtain all emails to a warrant asking the post office to provide copies of every letter sent from or delivered to a particular address so that law enforcement could open and read the mail to find whether it constitutes evidence of a crime. Such general warrants, both courts concluded, are clearly prohibited under the Fourth Amendment.
But the S.D.N.Y. held that these courts had too narrowly construed the Fourth Amendment’s particularity requirement, citing cases in which courts have upheld the practice of a brief perusal of innocuous documents seized during an otherwise valid search to determine their possible relevance to a crime. Specifically, the court compared the search warrant at issue to law enforcement searches of computer hard drives, noting that courts routinely permit the seizure of an entire hard drive in order to effectuate a proper search for the categories of documents included in a warrant. The court concluded that the broad latitude granted to law enforcement to access and examine electronic information stored on a hard drive, “even where the probable cause showing does not apply to the entirety of the electronic information that is disclosed to the Government,” applied equally to a user’s email account. The court also noted a number of cases, including two others in the S.D.N.Y., in which courts have permitted such broad email account searches.
M.J. Gorenstein next turned to an alternative for narrowing the government’s warrant application suggested by the D.C. District Court that would involve requiring the entity hosting the emails to undertake the email searches called for by the warrant. In the D.C. District case, Magistrate Judge John Facciola rejected the argument that a warrant seeking all of a customer’s emails from Apple, Inc. fell under a narrow exception authorizing an otherwise unconstitutionally broad search where it is the only practical way to perform the search. The court noted the existence of an alternative that would prevent the government from seizing large quantities of data for which no probable cause existed – namely, the electronic communication service provider could perform the search at the government’s request and simply turn over any relevant data that it discovered. While the S.D.N.Y. acknowledged that such a requirement may be appropriate where the searches do not require the exercise of skill or discretion on the part of the email host – for instance, limiting disclosure by time period – M.J. Gorenstein identified issues presented by such an approach where some discretion does come into play. In particular, the court noted that it is unrealistic to ask Google employees to review every email in a user’s account and attempt to interpret the significance of particular emails to a criminal investigation without the necessary training and supervision by law enforcement. Such an approach, the court observed, would essentially require the email host’s employees to act as agents of the federal government and would allow private employees to access and obtain personal information about the targets of investigations that they otherwise would have no reason to see.
On the related issue of whether the government should have to impose certain minimization protocols concerning the government’s handling and retention of the material disclosed by third-party custodians of electronic information, the S.D.N.Y. again sided with the government. The D.C. District had found the government’s proposal to seal and keep indefinitely, rather than destroy, emails determined to be irrelevant and outside the scope of the warrant to be unacceptable. But the S.D.N.Y. held that, while the government has the power to impose limitations at the time a warrant application is approved, such limitations are not required ex ante. The court noted the possibility that materials initially determined to be irrelevant may, as the investigation unfolds, be re-reviewed and marked as relevant as new information comes to light. The court also noted that seizure of email data did not create practical impediments for the individual’s use of the data such that it needed to be returned promptly.
In concluding that it was not required to impose minimization procedures in approving the warrant, the S.D.N.Y. dismissed the applicability of a recent decision by the Second Circuit Court of Appeals holding that the Fourth Amendment does not permit officials executing a warrant for particular data on a computer to seize and indefinitely retain every file on the computer for use in future criminal investigations.4 In that case, the government had seized an accountant’s electronic files pursuant to an investigation of certain of his clients and assured him that any files unrelated to the investigation would be purged. But the irrelevant files were not purged, and, when the government subsequently came to suspect that the accountant was involved in criminal activity, it obtained a second warrant for the material that had been in its possession for over two and a half years. The government relied on these retained files, which otherwise no longer existed, to convict the accountant for tax evasion.
Notwithstanding the Second Circuit’s post-conviction holding that the government’s retention was unreasonable under the Fourth Amendment, M.J. Gorenstein held that nothing in the Ganias opinion “suggests that a magistrate judge approving a warrant application must or should impose ex ante restrictions pertaining to the later execution of that warrant.” Instead, the court focused on other “appropriate and adequate” mechanisms available after the execution of a warrant designed to ensure that material obtained pursuant to a search warrant is properly handled and retained, including suppression motions, motions under Fed. R. Crim. Proc. 41(g), and civil damages actions. In other words, the defendant’s recourse comes into play only after being charged, a dangerous precedent indeed.
1. The decision is In the Matter of A Warrant For All Content and Other Information Associated With The Email Account email@example.com Maintained At Premises Controlled by Google, Inc., Case 1:14-mj-00309-UA (S.D.N.Y. Jul. 18, 2014).
2. In the Matter of the Search of Information Associated with [redacted] @mac.com that is Stored at Premises Controlled by Apple, Inc., 2014 WL 1377793 (D.D.C. Apr. 7, 2014).
3. In the Matter of Applications for Search Warrants for Information Associated with Target Email Accounts/Skype Accounts, 2013 WL 4647554 (D. Kan. Aug. 27, 2013).
4. United States v. Ganias, 2014 WL 2722618 (2d Cir. June 17, 2014).
Supreme Court Should End Miranda Rule
The Miranda rule is probably the rule of law most well known by the American public. We have seen it applied in all the television police shows and discussed in cases that are covered by the media.
Simply put, an
arresting officer must upon the arrest advise the person now in custody they have the right to remain silent and the right to an attorney, and that anything they say may be used against them at
trial. Further, if they are not able to afford an attorney, the state will provide one, free of charge.
The rule is the subject of constant debate with supporters and critics. The United States Supreme Court, which imposed the rule and deemed it a constitutional protection, has made it clear that it will not repeal the rule because of its long application and the doctrine of stare decisis. It was imposed in 1966 in the case known as Miranda v. Arizona.
However, the United States Supreme Court has over the years reduced the affect of Miranda by defining the conditions of custody more narrowly. Law enforcement officials need not warn an individual being interrogated of Miranda rights while he or she is free to leave at any time. The U.S. Supreme Court has over the years reduced the situations under which the Miranda warnings are required to be given.
The New York Times in
an editorial on March 6 opposed the weakening of the Miranda rule, stating, “The Supreme Court recently did significant damage to the Miranda rule, which requires that suspects in custody be told of
their right to remain silent and to have a lawyer present, and that any statements they make could be used against them in criminal proceedings. Without these warnings, statements made are
inadmissible as evidence, the court said in the 1966 case Miranda v. Arizona, because ‘the very fact of custodial interrogation exacts a heavy toll on individual liberty, and trades on the weaknesses
"That is exactly the principle violated by the court’s new ruling in Howes v. Fields. The case involved Randall Lee Fields, who was in jail in Michigan for disorderly conduct, was interrogated by sheriffs there and, based on what he said, was sentenced to 10 to 15 years in prison for a sex crime. The court’s 6-to-3 majority opinion, written by Justice Samuel Alito Jr., said that Mr. Fields should not be considered in ‘custody’ for Miranda purposes because a person already in jail is not shocked and coercible as someone newly arrested might be; cannot be induced to speak in hopes of being released; and does not worry that a sentence will be lengthened if he does not cooperate. Mr. Fields was not threatened or physically restrained and ‘was told at the outset of the interrogation, and reminded thereafter, that he was free to leave and could go back to his cell whenever he wanted,’ Justice Alito wrote.”.
I have never understood why the Miranda rule was ever imposed by the U.S. Supreme Court. A significant number of people committing crimes want to confess their guilt. Why in the world do we want to inhibit them from doing so? Even where the Miranda warning is provided, there are large numbers of putative defendants who will proceed to confess their wrongdoing. Isn’t that good? It certainly is good for society.
Of course, if the confession is forcibly obtained — physical duress in any form — it should be excluded. But if voluntary, why not use it in the trial that follows? I have always believed the supporters of maintaining the rule do so because they believe it is unfair that because a smart criminal would never confess, whether or not they were warned under Miranda, we are taking advantage of the less intelligent or less informed criminal who gives in to the normal impulse that many people have, which is to get their guilt off their chest and confess to the comforting police officer who tells them their confession and cooperation could help them at sentencing.
But the uncovering of crimes and the use of confessions when obtained without physical force is helpful to our society. That is why the U.S. Supreme Court, while mindful of another concept — stare decisis — earlier court decisions be respected and applied — are whittling down the circumstances when the Miranda warning and stare decisis doctrine should apply.
Of course individual
rights should be protected, but so should the right of society to be protected from criminals be a priority. In my judgment, with respect to Miranda, it should simply be dropped by the U.S. Supreme
Court, instead of the courts finding ways to limit its use.
I believe all police and district attorney interrogations of “persons of interest” relating to a criminal investigation should be videotaped if possible and when not possible, audiotaped.
 Friday, 16 Mar 2012 05:04 PM. Edward Koch was the 105th mayor of New York City for three terms, from 1978 to 1989. He previously served for nine years as a congressman. By Edward Koch
THE COURT OF SPECIAL APPEALS OF MARYLAND(1)
The Court of Special Appeals of Maryland recently held that the good faith exception to the exclusionary rule from Davis applies to pre-Jones GPS use because of the state's adoption of the Supreme Court's decision in Knotts. Kelly v. State, Nos. 2479 & 2679 (Md. Ct. Spec. App. 2012). In case you're in need of a criminal procedure refresher, I'll go over what all of that means. First, we know that the Fourth Amendment generally requires a probable cause search warrant in order to conduct a search. Thus, we have to know what is considered a "search." In 1983, the Supreme Court decidedUnited States v. Knotts, in which police placed a beeper device in a container which was later given to the defendant and used to track his location. This act, according to the Court, was not a search.
The Knotts opinion has been applied to other technologies including global positioning systems (GPS). As law enforcement began using GPS devices on vehicles without search warrants, courts readily okayed the act, finding that it was not a Fourth Amendment act. Until the DC Circuit decided this issue in Maynard, each circuit deciding the issue had held that GPS use was not a search. The Supreme Court took the issue inUnited States v. Jones and held in January 2012 that it was, in fact, a search.
One of the issues that has developed from the Jones decision is whether GPS use prior to the Jones decision violates the Fourth Amendment. This is where things get a little more complicated. Violations of the basic constitutional rule that searches require search warrants often results in any evidence acquired as a result of the violation to be excluded from trial under the exclusionary rule. However, there are several rules that allow for the evidence to be used regardless - one of them known as the good faith exception. There are several ways that the exception applies - one of them decided by the Supreme Court inDavis v. United States, which held that when there is "binding appellate precedent" that made it legal for law enforcement to do what it did, the evidence will be admissible.
Therefore, applying Davis, law enforcement in the Ninth Circuit could use GPS devices to track suspects prior to Jones because they had binding appellate precedent. Some courts have applied the principle more loosely, holding that a general consensus across the country allows the good faith exception to apply. Conversely, many courts have held that the exception does not apply because no appellate court had addressed the GPS issue. (There are exceptions to each of these and other decisions, too.)
Now, back to the Maryland case. Maryland didn't have binding precedent on GPS use specifically. The Court of Special Appeals didn't take the general consensus approach, but instead took one substantially more broad. Because, the court reasoned, the state "had recognized and applied the rationale of Knotts, the good faith exception would apply. As the court understood it, Davis "does not require there to be a prior appellate case directly on point, i.e., factually the same as the police conduct in question."
Federal courts in the Eleventh Circuit have held similarly, applying a 1981 beeper case.
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