Case Study 1
Janie Smith headed up a criminal ring in Sometown. This ring had been responsible for the rise in drug-related activity and prostitution in the town, and yet because Smith ran a tight and efficient operation, police have no evidence tying her directly to any crimes. Every time the police thought they had gotten close to Janie, she slipped through their grasp; that is, until police caught up to Cynthia Stout. Police in Coppertown had caught Stout with enough cocaine to put her away for 20 years. However, Stout offered to give them Janie Smith in exchange for a lighter sentence, and so she began to work with the Sometown Police Department.
Stout agreed to become a police informant and wear a state-of-the-art tiny video camera to her meetings with Smith about an upcoming drug shipment. The police planned to use the video to obtain an arrest warrant and charge Janie Smith with drug trafficking. Stout’s meeting was to be held in the private offices of a local business owner who had ties to the underworld. Stout went to the meeting, and there Smith described how representatives of the ring planned to meet a truck that would come in to an abandoned warehouse along the Winding River, on the outskirts of Sometown. The truck would contain 20 kilos of cocaine, along with some marijuana. Smith instructed Stout to meet up with her associate after the drop was made.
Sometown police used this information to intercept the drug shipment and then to arrest Janie Smith on drug trafficking charges as she was attempting to flee Sometown.
Questions
1. The incriminating statements made by Janie Smith were spoken in a private office of a local business owner, a space protected by the Fourth Amendment. Why was the evidence allowed at Janie Smith’s trial?
The statements made by Janie Smith were admissible at trial because Cynthia Stout was a consenting informant giving information in exchange for a lighter sentence. Police do not need a search warrant to conduct secret surveillance of contacts between a suspect and a cooperating informant. Because the informant could have reported everything said and done in his presence from memory, conducting such surveillance does not violate the Fourth Amendment.
2. What kind of authorization would the police have had to obtain in order to record the conversation between Janie Smith and her gang, had it not been for Cynthia Stout’s cooperation?
If not for Cynthia Stout’s cooperation, the police would have been required to obtain a search warrant to record the meeting. The meeting was held in a private office, where suspects have a reasonable expectation of privacy.
Case Study 2
Joe Staples is well-known in Sometown for his marijuana. Several students from Sometown High School have recently been arrested for marijuana possession, but none of them have been willing to identify their source. Officers at the Sometown Police Department have had their eye on Staples for years, but they just have not been able to catch him in the act. They strongly suspect that Staples has been growing marijuana in the back of his house, using heat lamps. However, they have been unable to gather enough evidence for a search warrant for his home. After the drug busts involving Sometown High School students, the police decide to get serious about catching him.
It just so happened that the department had recently acquired a thermal detector to crack down on homegrown marijuana operations. The police decided that it was time to try it out. Late in the evening, police officers sneaked into a wooded area behind Staples’s property and installed the detector. For several days, officers monitored the heat signature coming from Staples’s home and determined that the heat coming from his home could only be coming from a marijuana- growing operation. Now it was just a matter of catching Joe Staples leaving his home.
Unfortunately, Joe Staples was a bit of a homebody, and he did not leave his house very often. A few people came and left his house, but the police let them go, not wanting to alert Staples to their plans to arrest him. Finally, Staples left the house. As soon as he was down the driveway and onto the sidewalk, the police arrested him for an illegal marijuana-growing operation.
Questions
1. What is the Fourth Amendment requirement for the thermal detecting devices, and were the police justified in using one to monitor Joe Staples’s marijuana-growing operation? Did the fact that the police set up their equipment off of his property influence whether this surveillance was constitutional?
Joe Staples’s marijuana-growing operation was in his home. Because people have a reasonable expectation of privacy within their own homes, a search warrant is required to use thermal-detecting devices. Even though the police set up the equipment in the woods and not on Staples’ property, a warrant is still required.
2. What Supreme Court decision comes into play in this situation, and what was the Court’s reasoning?
In Kyllo v. United States, the Court held that the warrantless use of a thermal detector to determine whether the amount of heat emanating from the suspect’s home was consistent with presence of high-intensity lamps used to grow marijuana violated the Fourth Amendment because the device yielded information about activities inside a home that police could not otherwise have obtained without entering. The Fourth Amendment warrant requirement applies when police use high-tech surveillance equipment to gather information about activities inside a home.
3. Joe Staples’s lawyer demands that all charges against his client be dropped. What is the result, and why?
Because police violated Joe Staples’ Fourth Amendment rights in conducting an illegal search, all of the evidence gathered on the marijuana-growing operation is inadmissible. Joe Staples goes free.
Case Study 3
Jeffrey Winkle conducted his business over the Internet—including his criminal business. Winkle had made a small fortune as an online entrepreneur and, as a hobby, he fancied himself a collector of rare antiquities. He had an impressive collection in his home, where he threw lavish parties for important friends.
To finance this hobby, Winkle traded in black-market antiquities. His friends soon had fine collections of their own, though most of them could not display them as proudly as he did. Winkle took orders from his contacts via e-mail and then sent messages in return when he obtained certain items to see if they might be interested. He used coded language, of course, but the overall gist of his communications was clear. Once an agreement was reached on price, payment and shipping details were arranged. Winkle avoided the telephone, and there was no paper trail linking him to his deals.
The authorities had suspected him for a couple of years of dealing in rare artifacts illegally, but they were unable to trace anything directly back to him. He was careful with shipping methods and worked with a network of couriers to make sure that his name was in no way connected with the shipments. However, after arresting one of his important friends on a cocaine charge, an officer found a printout of an e-mail from Winkle that appeared to be a description of a rare artifact and a price in his wallet. When questioned about the paper, the important friend gave some incriminating testimony about Winkle’s online operation. The important friend did not know if Winkle came about these objects legally or not, but he did know that Winkle wanted everything kept quiet.
This gave the authorities an idea. They would search Winkle’s e-mail records to see if they could get enough evidence to prosecute him. His love of collecting, they surmised, might have made him an e-mail saver.
Questions
1. What law governs e-mail after it arrives at its destination? How does this law compare with other laws concerning communications?
Once e-mail messages arrive at their destination, they are governed by the Stored Wire and Electronic Communications and Transactional Records Act (Stored Communications Act). In the very brief period after the sender hits “send” and the message arrives at its destination, messages are governed by the Wiretap Act, but for all intents and purposes, that protection is nonexistent.
2. How does this law compare with other laws concerning communications?
Protection under the Stored Communications Act is considerably less than that afforded by the Wiretap Act. During the first 180 days of storage, access can be obtained only through a conventional search warrant, which means that the government must have probable cause. However, protection dwindles with the passage of the time. After 180 days, if notice is given to the subscriber, disclosure can be compelled through an administrative subpoena, grand jury subpoena, or court order, based on a showing that the contents are relevant to an ongoing criminal investigation. The notice can be delayed by up to 90 days, if giving notice presents a risk to the investigation. E-mail that has been in storage for 180 days may, in many cases, be obtained without notice to the subscriber.
3. The authorities realize that they do not have much to go on for their investigation of Winkle, so they seek out e-mails older than 180 days. Would they be able to obtain those e-mails?
Based on the testimony from the “important friend’ and the e-mail printout, the authorities could get a subpoena from a judge to gain access to Winkle’s e-mail messages that are older than 180 days. By looking at older messages first, the authorities delay notifying Winkle of their investigation, allowing them more time to gather evidence