MENS REA: The Future of the 4th Amendment

By Mike Nichols A New Jersey Court struck down a program used by law enforcement to collect cell phone "tracking" data without judges reviewing the basis for the move. It was the right decision. We are going to see more and more trial courts and intermediate appellate courts ruling on these situations on a case by case basis. A link to the opinion can be found online at http://www.judiciary.state.nj.us/opinions/supreme/A5311StatevThomasWEarls.pdf. The practice is used by law enforcement almost routinely throughout Michigan. Note the Grand Rapids police recently publicized its use of cell phone tracking to find a stabbing victim who was hiding in a basement from her attacker. Certainly--that case was a situation in which the ability to find a person who needed help in an ongoing emergency was crucial (http://www.mlive.com/news/grand-rapids/index.ssf/2012/02southwest_side_stabbing_victim.html). Does that mean law enforcement should have an unchecked path to our whereabouts, associations, contacts and communications? Tracker technology is a way law enforcement tries to put together a case for support of their theory of the role of a suspect by trying to pinpoint his whereabouts. The investigators can then keep "connecting the dots" with cellphone tower locations where the person's cellphone may have "pinged." The opinion in Earls does not resolve the validity of a 'pinging' theory of tracing someone's whereabouts. I question the scientific reliability based on an error rate or variance in the ability to pinpoint the location of the person. The issue decided here is whether the New Jersey state constitution provides greater protection than the United States Constitution. The court here said yes and that the police must have a search warrant or an exception to the warrant requirement based on the state constitution, even though the United States Supreme Court has not required a warrant for such police conduct. Mr. Earls was convicted by plea of a theft charge after a suppression motion was denied by the trial court under what is known as the emergency aid doctrine. The emergency aid doctrine is also called the community caretaker exception. It allows for police to act without seeking a warrant to assist a person who needs help. He later challenged the ruling in the lower court on the suppression issue. It is interesting to note that the Michigan Constitution was interpreted as granting greater protection of individual rights than the United States Constitution in Sitz v Michigan. I do think that the anger expressed by many Americans about government collection of our cell phone and other personal information may play a role in intermediate appellate court opinions and state Supreme Court opinions across the United States. The history of our courts is to sometimes bend to the wind of public sentiment in major cases that interpret the constitution in times of historical import. This is a time of great importance during which historians will gauge the strength of our legal system: how does this country and its states resolve the tension between protecting individual safety and protecting individual sanctity? ---------------- Mike Nichols is an East Lansing attorney who focuses on DUI-DUID defense and complex criminal with forensic evidence issues. He is an adjunct professor of forensic evidence and DUI Law and practice at Thomas M. Cooley Law School in Lansing. He is author of the "West OWI Handbook" (2013 update coming in November) and co-author of "DUI Mathematics" for "Scientific Evidence in DUI Cases" by West-Aspatore Publishing. He is also the Michigan delegate to the National College for DUI Defense and a member of the State Bar of Michigan Criminal Law Section Council. mnichols@nicholslaw.net Published: Fri, Aug 30, 2013