Stingrays and Privacy

The Florida Supreme Court recently issued an opinion holding that the Fourth Amendment protections apply to real time cell site location information. The court distinguishes real-time cell site location records from historical data, emphasizing that historical cell site location records are not at issue in this case. This real time location surveillance is done with devices used by law enforcement to track cell phones. These devices, known as “IMSI catchers,” are sold under the names StingRay, TriggerFish, AmberJack and other fish names.

In Tracey v. State, 39 Fla. L Weekly S 617 (2014), the court rejects the mosaic theory of the Fourth Amendment that was applied in United States v. Jones, 132 S. Ct. 945 (2012). Using this approach, courts evaluate a sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. The Florida Supreme Court notes that the theory’s “case-by-case, after-the-fact, ad hoc determinations” are not workable and present the danger of arbitrary and inequitable enforcement. Tracey at 38. The court also rejects the idea of “setting forth a chart designating how many hours or days of monitoring may be conducted without crossing the threshold of the Fourth Amendment.” Id. at 39-40.

The court bases its opinion on the “normative inquiry” put forth in Smith v. Maryland, 442 U.S. 735 (1979). In Smith, the Supreme Court said that a normative inquiry would be proper “where an individual’s subjective expectations had been ‘conditioned’ by influences alien to well-recognized Fourth Amendment freedoms.” Smith at 740-741. Applying the normative inquiry, the Tracey court looks to various factors and considerations. One consideration is how easy it is for the government to monitor and track cell phones. The court also notes that “[s]imply because the cell phone user knows or should know that his cell phone gives off signals that enable the service provider to detect its location for call routing purposes . . . does not mean that the user is consenting to use of that location information by third parties for any other unrelated purposes.” Tracey at 45. While cell phone users can turn off their cell phones to prevent location signals from being used, the court finds that this would place an “unreasonable burden on the user to forego necessary use of his cell phone, a device now considered essential by much of the populace.” Id. at 46. Finally, the court finds that cell phones are “effects” under the Fourth Amendment, having become “virtual extensions of many of the people using them for all manner of necessary and personal matters.” Id. at 49.

The Florida Supreme Court distinguishes this case from the U.S. Supreme Court’s decision in United States v. Knotts, 460 U.S. 276 (1983) where the Court found that the use of an electronic beeper to track a car’s movement was not a violation of the Fourth Amendment. The relationship between Knotts and the beeper is different from that of an owner and his cell phone. The Florida court also found that in Tracey, though the defendant’s movement on public roads was tracked, law enforcement would not have been able to locate him on those roads but for the real time cell location data.

The court concludes by stating that “a subjective expectation of privacy of location as signaled by one’s cell phone—even on public roads—is an expectation of privacy that society is now prepared to recognize as objectively reasonable under the Katz ‘reasonable expectation of privacy’ test.” Tracey at 53.

For more information on Stingrays, check out this previous blog post about what defense attorneys need to know and this School of Government post about the legal status of these devices. A recent Charlotte Observer article discusses the use of the technology locally. The article reports that Charlotte-Mecklenburg police department has owned this surveillance equipment for eight years and currently uses it on a weekly basis. While police seek court orders before using the equipment, one Superior Court judge said that he has approved hundreds of requests, has never turned down a request, and is unaware of any other Superior Court judge ever rejecting a request. Orders allowing this type of surveillance are sealed and not provided to the defense through discovery, so it is unclear when and how this technology is being used.

NACDL Offers New Training Scholarship for Indigent Defense Attorneys

The National Association of Criminal Defense Lawyers (NACDL) is offering a new program of scholarship assistance for indigent defense providers. The scholarships will be available to public defenders, contractors, and private appointed counsel to allow defenders to attend criminal defense training programs nationwide.

These grant-supported scholarships will be awarded in the form of full or partial reimbursement of the registration costs of training programs offered by NACDL and other organizations. Limited travel reimbursement stipends may also be awarded to qualifying individuals to help defray the costs of travel and lodging. Individuals may apply for scholarship funds to attend in-person training events presented by NACDL or any of the organizations listed on the application form. Alternatively, individuals may request assistance attending a program sponsored by a different organization, for example, a national organization not listed on the application form or a comparable organization working on the state or local level.

More information about the scholarships, including detailed eligibility criteria, is available here. The scholarship application for NACDL training programs is available here. The Multi-Organizational Indigent Defense Training Scholarship Application is available here.

Please note that the application forms ask you to attach a brief statement from a supervisor verifying that your office lacks sufficient funds to cover registration for the program you are seeking to attend.  To aid you in satisfying that request, a letter from IDS Director Tom Maher describing IDS’s current budget constraints as they relate to funding for training is attached to this email.  Mr. Maher’s letter will also be posted on the IDS website next week under the “Training Opportunities” link.

For information about upcoming forensic training programs, click here.

 

What is in a State Crime Laboratory Lab Report?

Many attorneys have asked me what should be included in a lab report from the State Crime Lab. Often in District Court DWI cases or through discovery, defense attorneys receive only a 1-2 page report called a Lab Report. For each case that is analyzed by the State Crime Laboratory, the lab produces a Case Record in Forensic Advantage (FA), the lab’s electronic information management system. The Case Record contains many items, including the lab report, chain of custody information, analyst CV, and information about tests performed. Under N.C. Gen. Stat. 15A-903, the lab provides this Case Record to the prosecution for disclosure to the defendant through discovery. If attorneys do not receive complete lab reports, they should request the items described below through discovery. This information is also available on the IDS Forensic website.

How are reports accessed by the District Attorney’s Office?

When the lab has completed its analysis and finalized its report, an email is automatically sent to the District Attorney’s office and the law enforcement agency that requested the analysis, notifying them that the Case Record is available. These offices can access the Case Record using a web-based program called FA Web. There are legal assistants or victim-witness coordinators in each DA’s office who are trained to use FA Web. They can access the Case Records using the emailed link (which remains active for seven days after the email is sent), or they can search for the report within FA Web even after the email link has expired. Some ADAs and DAs may also be trained in using FA Web, but typically it is a legal assistant who accesses the FA Web and downloads the Case Records.

Many defense attorneys are surprised to learn that a full Case Record is produced by the lab and sent to the DA’s office for each case that is worked, including District Court cases. Depending on whether they have been trained in the use of FA Web, ADAs may or may not know that the lab provides complete Case Records for each case worked, but the legal assistant in their office who is trained to use FA Web can access these full reports.

How long has this system been in place?

FA was adopted by the lab in 2008 as the lab’s electronic information management system. Since 2011, the lab has been providing Case Records to DA’s offices through FA Web. Since June 2013, DA’s offices have had the option to download and print partial “Ad Hoc” lab reports instead of printing the full Case Record.

What is included in a Case Record Full Packet?

The “Case Record Full Packet” may be downloaded as one zip file or portions of the Case Record may be downloaded separately. The Table of Contents is the most important page for a defense attorney to review in order to determine if the complete packet has been provided through discovery. If items of evidence were analyzed in more than one section of the lab, each lab section will complete a separate Case Record for its analysis and Case Records will be numbered consecutively (for example, Record #1 may be from Trace Evidence, Record #2 may be from Forensic Biology and DNA, etc.) Some Case Records may not be needed once created, such as when an examination is redundant with another Case Record. These will be listed as “Terminated.”

The main PDF in the zip file Case Record Full Packet contains the Table of Contents. The Table of Contents will specify if it is a Case Record (Full), Ad Hoc or Officer. If an attorney sees on the Table of Contents that the packet is an Ad Hoc or Officer packet, the attorney will know that there were additional items provided by the lab that have not been provided to the defense. If the DA’s office downloads the Case Record Full Packet the entire packet will be paginated consecutively and state the total number of pages, such as Page 1 of 200. If only a partial Ad Hoc packet is downloaded, the portion that is downloaded will be paginated, such as Page 1 of 10.

The Case Record Full Packet will include the following items (though not necessarily in this order):

• Table of Contents – lists all items included in the main PDF file of the “Case Record Full Packet” as well as additional items that are sent as separate files. Every packet (including partial Ad Hoc packets) that is downloaded from FA Web will have a Table of Contents. This Table of Contents has been annotated to describe its various parts. These links show sample Table of Contents for Digital Evidence (Audio Video and Computer), Drug Chemistry, Firearms, Toolmarks, Forensic Biology (Blood, DNA, and Semen) Latent Evidence (Footwear-Tire and Latent), Toxicology, and Trace Evidence (Arson,Explosives, Fiber, Glass, GSR, Hair, Paint, and Trace). Beneath each item listed in the Table of Contents will be an indented description of this item. Often the “description” just repeats the name of the document. Attorneys should know that indented description is not a separate or duplicate item, but is intended to describe the item listed above. The lab plans to remove the descriptions when it upgrades the FA Web program as they are mainly duplicative of the document name.
• Lab Report – a 1-2 page document that states the analyst’s conclusions. It will not identify what test was performed or how the analyst reached her conclusions. This is the notarized document that is found in the court file in District Court DWI cases. Many attorneys think this is the only report that the lab produces, but it is just one part of the entire Case Record that the lab produces for each case.
• Case Report – several pages that list the names of the analysts who performed the analysis and reviewed the case. If any problem is found when the case is reviewed by another analyst, the problem will be briefly described in this section in a written dialogue between the analysts.
• Chain of Custody – shows the chain of custody of the item of evidence within the lab.
• Request for Examination of Physical Evidence – a copy of the form that law enforcement submits to request that an item be analyzed by the lab.
• Worksheets – as the analyst works, she records which test is performed and her observations, measurements, and results using an electronic form on her computer. The Lab Worksheets are printouts of these electronic forms. The Lab Worksheets are one place to look to see what tests were performed.
• Quality Control/Quality Assurance and sample preparation documentation – this documentation will vary depending on the type of analysis completed, but many analyses will have documentation of calibration curves, positive and negative controls, instrument set-up, sample preparation, instrument results, etc. Attorneys can consult with Sarah Olson, their own expert, or the lab analyst for an explanation of these case-specific items.
• Communication Log – includes details of case-related phone conversations, including communications from law enforcement, prosecutors, and defense attorneys, if any such communications occurred. If communication has occurred by e-mail or memo, the e-mail or memo will be provided as part of the main PDF file in the Case Record Full Packet.
• CV of Analyst(s)
• Messages Report – these are messages that can be sent from external users to the State Crime Lab via the FA system, such as rush requests or stop work orders. Analysts can also send messages to each other through the FA system that will be recorded here.
• Publish History and Packet History – if this is the first publication of the packet, it will be noted here. If this is a subsequent publication of the packet, any information on previous publications, including downloads by FA Web users, will be listed.

Several additional items also make up the Case Record Full Packet. These items are listed in the Table of Contents but are not paginated with the previous documents.

• Prior Versions of Worksheets and Lab Reports – various versions of one Worksheet may be saved during analysis as the analyst progresses through her work. If an analyst has to go back and amend something in a completed Worksheet, the previous and new versions will be saved. If an analyst changes something in a Lab Report, the previous and new versions will be saved. These worksheets and reports are paginated separately from the Case Record Full Packet.
• Worksheet Resources – a list of all instruments, equipment, chemicals, reagents, kits, and other standards used in the analysis. The document also contains the maintenance history for the equipment and instruments used. This document is paginated.
• All other items that cannot be made into PDFs, including images and some data files – images may be printed by the DA’s office, but attorneys should request them on a disc for better image quality. Raw data files cannot be printed and require proprietary software to open. Currently raw data files are being provided only in cases where DNA analysis was performed. These files can be opened by an expert who has the appropriate software to read this data.

How do I know if I received all documents that the lab has produced?

There are a number of steps that defense attorneys can take to ensure that they are receiving compete discovery:

1. Review the Table of Contents – Attorneys should look for the Table of Contents in the Case Record Full Packet and check to ensure that the type of Case Record that the DA’s office downloaded was Full (rather than Ad Hoc) and that all documents listed in the Table of Contents are provided.
2. Check pagination – The FA Web system paginates everything that is downloaded. If, for example, only pages 4 and 5 of 200 are provided, the defense attorney will know that she doesn’t have a copy of everything that the DA’s office downloaded. However, if the DA’s office chooses to only download a portion of the packet (Ad Hoc packet) rather than the Case Record Full Packet, only those downloaded pages will be paginated. For example, if the Case Record Full Packet has 200 pages but the DA’s office only downloads the Lab Report which is 2 pages, those pages will be paginated, 1 and 2 of 2.
3. Request Forensic Advantage notification emails from the DA’s office – Whenever the lab updates a Case Record that has already been sent to the DA’s office, FA will send an email notifying the DA’s office that there has been a change and specifying which portion of the record is changed. Defense attorneys should request these emails from the DA’s office through discovery. The updated Case Record may appear to be a duplicate of the original Case Record that was provided (and may be hundreds of pages long). These emails can help identify which document was changed.
4. Meet with the ADA – Defense attorneys may request to meet with the ADA assigned to the case to view all of the documents available on FA Web to ensure that everything has been downloaded and shared through discovery.
5. Consult with the lab – After reviewing the discovery and checking that the DA’s office has provided everything available in the FA Web program to the defense, defense attorneys may consider scheduling a pre-trial meeting with the lab analyst if questions remain about reports. State Crime Lab analysts are available to meet with defense attorneys prior to trial and will answer questions about the analysis that was performed and what reports/documents were produced in the case. Defense attorneys may contact Lab Legal Counsel Assistant Attorney General Joy Strickland if there are issues with lab discovery that cannot be resolved with the ADA.

Familial DNA Testing

by Emily Zvejnieks

Familial DNA testing, an innovative yet highly controversial technique, is being used in several states. This blog post will provide an explanation of what familial DNA testing entails and briefly discuss its Fourth Amendment implications.

In standard DNA testing where there is an unknown sample, that unknown sample may be compared against samples in the Combined DNA Information System (CODIS), an index maintained by the FBI. The index is made up of samples of convicted offenders and individuals who have been arrested or charged with certain crimes but not yet convicted. Traditionally, the unknown sample is compared against known samples in the database, looking for an exact match.

In situations where an unknown sample exists but a search of an existing DNA database returns no exact matches, it is possible to conduct a search to identify potential relatives of the alleged perpetrator. This process is called familial DNA testing. The actual process is a low-stringency search, which produces inexact matches. The search is based on the idea that those closely related to each other share more genetic data than those not closely related.

There are two pending U.S. cases currently in the spotlight where defendants were identified as a result of familial DNA testing in California and Wisconsin. Lonnie Franklin, Jr., also known as the alleged “Grim Sleeper” serial killer, is charged with several counts of murder for crimes that occurred in Los Angeles in the 1980s and 2000s. In that case, authorities obtained the perpetrator’s DNA from various crime scenes. After running the DNA through the offender database with no exact matches and no other suspects, the sample was submitted for familial searching, and the search rendered a result of a potential first-degree family member. Detectives then determined that Lonnie Franklin, Jr., the father of the person whose DNA sample was in the database, lived in close proximity to most of the crime scenes.  An undercover officer then followed Franklin to a local pizza joint and, after Franklin was finished with his plate, collected his plate, pizza, and utensils. After testing DNA obtained from his leftovers, authorities matched the unknown sample to Franklin. Franklin has since been charged with ten counts of murder and one count of attempted murder, and his cases are pending.

Wisconsin recently used familial DNA testing for the first time. The case involves pending sexual assault charges against Michael L. Dixon.  A series of similar rapes that occurred between 2008 and 2012 in Milwaukee remained unsolved until a familial DNA search was performed using the perpetrator samples from the crime scenes. Using familial DNA testing, there were two close matches. Upon further investigation, it was determined that one of those matches did not have any male first-degree relatives, so that possible match was eliminated. The other close match did have a brother: Michael L. Dixon, who had been found not guilty of a 2012 rape with similar facts to the unsolved rapes. Wisconsin authorities had Dixon’s DNA sample from his arrest on the 2012 charges, but his DNA was never added to CODIS since he was not convicted. The perpetrator’s DNA from the unsolved rapes and Dixon’s DNA were an exact match. Dixon now awaits trial for first and second degree sexual assaults.

The Innocence Project opposed the use of familial DNA testing in a February 2013 position paper.  Interestingly, California implements many of the safeguards the Innocence Project suggests regarding admissibility of evidence procured through familial DNA testing. Michael Chamberlain, Deputy Attorney General of the California Department of Justice, wrote an article published by the American Bar Association in 2012 that lays out familial DNA testing use and practice.  California uses its own software called the “ratiometer.” After coming up with 150-200 possible close matches, the ratiometer runs a Y-STR test, which analyzes the Y chromosome only to determine whether there is a matching Y-STR profile. If Y-STR profiles match, that indicates there is a paternal relationship. Because the California process uses the Y-STR test, familial DNA testing cannot be used for females and also does not identify half-brothers who share the same mother.

Fourth Amendment implications of familial DNA testing are mind-boggling.  On one hand, we know that a defendant does not have a Fourth Amendment claim when his or her privacy interests were not violated.  Many of the samples entered into CODIS belong to convicted felons who, according to our justice system, gave up some privacy interests by way of their actions.  Familial DNA testing is a search of those samples.

On the other hand, the reason that there is no exact match in the CODIS database and familial DNA testing is being done is because the suspected perpetrator is not a convicted felon and thus his or her privacy rights have not been compromised.  Each person shares DNA with his or her parents, siblings, and children.  If one of them has given a sample due to being a convicted felon, or even gives a sample voluntarily, then their relatives’ DNA can be analyzed as well.

Arguably, familial DNA searching falls under the “technology not in general public use,” as discussed in Kyllo v. United States. In Kyllo, SCOTUS held that a thermal imaging device used to determine excess amounts of heat inside a private residence was a search as the technology employed was not in general public use.  Kyllo, 533. U.S. 27 (2001). Similarly, DNA searching is a technology not in general public use, and it could be argued that familial DNA testing is a search requiring a warrant – otherwise it would be a way for the government to get around Fourth Amendment protections of a person whose family member’s DNA is in a database.

Another concern with the use of familial searching is that it will create suspects out of innocent people simply because they are related to someone whose DNA is in a database and their relative’s DNA is similar to DNA found at a crime scene. Because of the racial makeup of the existing DNA databases, people of color will be disproportionately impacted. Innocent citizens will become subjects of police investigation, and will bear the privacy, emotional, economic, and liberty costs associated with being investigated for a crime.

As familial DNA searching becomes more widely used in the United States, it will be interesting to see what North Carolina as well as the Supreme Court of the United States decide on its use and admissibility. To date, the only known case where this technique has been used in North Carolina is the Darryl Hunt case. Certainly any jurisdiction choosing to perform familial DNA testing should implement stringent requirements for its use. For more information, this website offers a four-part webinar series on familial DNA testing.

Other Sources:

42 U.S.C. 14132.

Kyllo v. U.S., 533 U.S. 27 (2001).

Bruce Vielmetti, First use of Familial DNA test leads to charges in serial sex assaults, Milw. J. & Sent., July 11, 2014, http://www.jsonline.com/news/crime/new-dna-technique-leads-to-serial-raper-charges-say-b99309491z1-266827171.html.

Chamberlain, Michael, Familial DNA Searching: A Proponent’s Perspective, Crim. Just., Volume 27, Number 1, Spring 2012.

FBI, Familial Searching, http://www.fbi.gov/about-us/lab/biometric-analysis/codis/familial-searching.

Global Justice Information Sharing Initiative, An Introduction to Familial DNA Searching for State, Local, and Tribal Justice Agencies: Issues for Consideration, https://it.ojp.gov/gist/111/An-Introduction-to-Familial-DNA-Searching-for-State–Local–and-Tribal-Justice-Agencies.

Kim, J., Danny Mammo, Marni B. Siegel, and Sara H. Katsanis, Policy Implications for Familial Searching, Investig. Genet., http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3253037/.. November, 1, 2011.

Symposium, Family Ties:  The Use of DNA Offender Databases to Catch Offenders’ Kin, 34 J.L. Med. & Ethics 248 (2006).

Weiss, Lindsey. All in the Family: A Fourth Amendment Analysis of Familial Searching.  The Selected Works of Lindsey Weiss.  Available at:  http://works.bepress.com/lindsey_weiss/2.