The Fourth Amendment and Emails

A Federal Appeals Court recently extended Fourth Amendment protections to emails – yet another adaptation of the Fourth Amendment to our modern age.  In Warshak v. United States, Case No. 06-492 (6th Cir. 2008), the court stated “an Internet subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial Internet Service Provider.”.  This ruling came after federal authorities seized emails from a company called Enzyte, who marketed “male enhancement” on national television for a time.

The government alleged that the company based its advertisements on fake studies and pocketed hundreds of millions of dollars.  A jury ultimately agreed, but emails that were seized from the company without a warrant were presented in the trial over the defendants’s objections.  The appellate court reversed the trial court’s ruling on the emails, holding that a commercial email provider is akin to the post office in that it handles electronic communication – sometimes very sensitive communication – with an expectation of privacy.

In the case at issue, the government seized over 27,000 emails from the Internet Service Provider.  It is worth noting that the court’s ruling does not preclude the government from obtaining a warrant to seize emails, just like any other evidence.  However, the extension of the warrant requirement to electronic communications is just another step in the evolution of the Fourth Amendment, one that will hopefully prevent unreasonable government intrusions to your privacy.

If you are being charged with a crime, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Mere Acquiesence

Law enforcement officers often believe that they have the authority to frisk or pat down just about every civilian they encounter.  As the Fourth District Court of Appeals recently reminded the St. Lucie County’s Sheriff’s Department, they don’t.

Many people often simply just assume that when an officer indicates that he wants to search them, they have to simply allow it.  There is a great deal of confusion on this issue, mainly because of statutes that criminalize the act of “resisting an officer without violence.”  When it is common knowledge that you can be jailed for resisting law enforcement, it makes sense that people would be hesitant about telling an officer “no, you can’t search.”  After all, isn’t that the most simple way to resist?

Contrast this with the constitutionally guaranteed freedom from unreasonable searches and seizures and you get a great deal of public misconception.  People often tell me that they consented to a search of their home, car, or person because they did not believe that they had the right to refuse the request.  This is called “mere acquiescence” to authority and is insufficient to waive your right to live free of governmental intrusion.

Pat downs and frisks that are conducted to check for weapons often lead to the discovery of drugs.  In E.J. v. State, Case No. 4D-0-736, decided August 4, 2010, a juvenile was a passenger in a vehicle that was pulled over.  The driver was asked out of the vehicle and searched.  As an officer approached the juvenile, she immediately got out of the vehicle, put her hands on the hood, and spread her legs in anticipation of being searched just like the driver.  The officer frisked her and found marijuana.  She later challenged the search by claiming she never consented to the search, and by also claiming that she was not even aware that her consent was needed.  The trial court held that her actions gave the officers a reasonable belief that she was consenting to a search.

The Fourth District Court of Appeals reversed, noting that the test for whether or not consent existed is not what the officers believed, but rather whether or not consent was actually given.  In order for consent to be valid it must knowing, intelligent, and voluntary.  In E.J.’s case, there was no evidence to show that any of those requirements were met.

Law enforcement officers deal with potentially dangerous situations every day.  Ensuring people don’t have weapons that could be used to harm either the officers or other civilians is an age-old practice that many officers do automatically.  In this case, their behavior was neither extreme or unusual.  As the court noted in E.J. v. State, a generalized fear for officer safety is most understandable, but does not justify a frisk or search by itself.

If you are facing prosecution for an alleged criminal act, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

Expectations of Privacy in Apartments

The Fourth Amendment has long stood for a fairly common-sense principle:  Agents of the government are not supposed to enter or search a place where a person has a reasonable expectation of privacy without a warrant or probable cause to believe that there is some evidence of a crime there.  Although it seems pretty simple, this doctrine has been litigated for years in the nation’s highest courts, usually turning on the interpretation of the phrase “reasonable expectation of privacy.”

Courts have uniformly held that a person certainly has a reasonable expectation of privacy in his home.  The Florida Supreme Court recently addressed a unique situation.  In Caraballo v. State (SC07-1375, decided June 24, 2010), the issue arose as to whether or not an apartment, whose owners were in the process of evicting the tenant, carries the same protections as a regular home.

Caraballo was convicted of murder, kidnapping, rape, and a host of other heinous crimes.  Before trial and while the investigation was ongoing, law enforcement officers entered Caraballo’s apartment with the consent of the apartment owners but not the renting tenant, who happened to be Caraballo.  Typically, this sort of entry is illegal and anything found inside would not be admissible against the tenant.  Inside they found Caraballo and collected several pieces of evidence later used to convict him.  Caraballo also made several incriminating statements.

Even if a tenant is not an owner, the tenant still has a reasonable expectation of privacy in a place that they both rent and reside.  However, in this case, Caraballo had previously failed to pay his rent and the owners had begun eviction proceedings.  In addition, there was evidence that Caraballo knew of the eviction proceedings and had removed most of his personal belongings from the apartment.  Most importantly, he no longer had a key to the apartment and had to borrow one from the apartment’s leasing office before entering.  He told the leasing office that he was simply removing a few remaining articles from the apartment.

The Court held that Caraballo had no reasonable expectation of privacy in an apartment he was being evicted from and had apparently abandoned.  The Court noted the facts that Caraballo had already removed many of his belongings and that he no longer had a key.

While this may seem like a very specific situation, the Court’s holding further defines the perpetually nebulous concept of privacy by applying common sense.  Here’s a lesson one can learn from this ruling:  When you stop paying your rent, you stop becoming a tenant.  When you’re not a tenant, you have no right to challenge a police entry into an apartment.

If you are facing prosecution for a crime, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer