U.S. Supreme Court

Repeated Intentional Disclosure of Illegally Intercepted Cell Call Regarding Public Issue Upheld

Bartnicki et al. v. Vopper, aka Williams, et al., 121 S.Ct. 1753 (2001).

During contentious collective bargaining negotiations between a Pennsylvania teachers’ union and the local school board, a cell phone call between the union negotiator and union president was intercepted by an unknown party and recorded. Discussed were sensitive matters relating to the ongoing negotiations including strike timing and strategy. After the parties accepted a nonbinding arbitration proposal, a copy of the recorded cell phone call was forwarded to a local radio commentator and played repeatedly during a talk show program. Petitioners sued alleging violations of federal and state wiretapping statutes.

Under federal law, the district court reasoned an individual cannot intentionally disclose the contents of an electronic communication when they know or have reason to know that the communication was obtained through an illegal interception, even if they did not participate in that illegal act. The court rejected respondent media representatives’ claims of protection under the First Amendment even if the disclosures violated federal statutes. The court also held the governing statutes were content-neutral and contained no indicia of prior restraint or the chilling of free speech. On appeal, the Third Circuit remanded the case finding the applicable statutes invalid as they significantly deterred more speech than necessary to protect the privacy interests in question.

Held: The Supreme Court ruled the call violated federal and state wiretapping statutes as the initial interception was unlawful and respondent media representatives had reason to so know. However, in an analysis between the interests of full and free dissemination of information concerning public issues versus the interest of individual privacy and fostering private speech, the Court held the disclosures made by the media were protected by the First Amendment despite the illegal nature of their procurement.

Inadequate Jury Instructions Re Weighing Mitigation Results in Reversal

Johnny Paul Penry v. Gary L. Johnson, No. 00-6677, 2001 U.S. Lexis 4309.

Penry was convicted of capital murder in 1980 after the jury considered three statutorily mandated “special issues”: whether his conduct was committed deliberately and with the reasonable expectation death would result; whether there was a probability defendant would continue to commit criminal acts of violence thus constituting a continuing threat to society; and if raised by the evidence, whether defendant’s conduct was unreasonable in response to the level of provocation by the victim. The jury affirmatively found each issue and sentenced Penry to death. In mitigation, the defense offered evidence that Penry was mentally retarded and had been abused as a child. The jury was not instructed it could give mitigating effect to those factors.

Penry was retried, found guilty of capital murder and sentenced to death after the jury again found the three “special issues” present despite an extensive showing in this second trial of mitigating factors by the defense and despite being given a supplemental instruction regarding evaluation of this mitigating evidence. A habeas corpus petition was denied.

The Supreme Court found the jury instructions in the second trial essentially identical to the constitutionally inadequate instructions offered in the first jury trial. Further, the Court stated the supplemental instruction was illogical and inadequate in allowing the jury to make a reasoned moral response to the mitigating evidence offered and placed the jury in an impossible situation in rendering its decision regarding the death penalty.

Held: The jury instructions failed to adequately instruct the jury regarding mitigating evidence. A reasonable juror could well have believed there was no option within the choices offered by the court had it elected, upon conviction, the defendant did not deserve the death penalty based on the mitigating evidence heard in the proceeding. Reversed in part.

Evidence Obtained by Thermal Imaging Device
“Too Hot” for Admission

Danny Lee Kyllo v. United States, 2001 U.S. Lexis 4487.

At issue was whether the use of a thermal imaging device to collect evidence not otherwise apparent to plain view constituted a Fourth Amendment search. Acting on information by a confidential informant that defendant was growing marijuana, an analysis of defendant’s utility bills and the use of a thermal imaging device capable of detecting infrared radiation, officers went before a federal magistrate to obtain a warrant to search defendant’s home. Once inside the home, officers located an indoor growing operation yielding over 100 marijuana plants. Defendant’s motion to suppress was denied by the trial court and defendant entered a conditional guilty plea.

The Ninth Circuit affirmed upholding the use of the thermal imaging device to collect data based on the rationale the defendant had no expectation of privacy regarding home heat emissions because he had failed to conceal their escape from his home. Further, the court reasoned that even if defendant had made attempts to conceal this heat, he had no reasonable expectation of privacy because the device did not expose intimate details of his life by identifying “hot spots” on the building’s exterior surfaces.

Held: The Supreme Court’s analysis held that when the government uses a device which is not generally within the public’s use to explore details of a private home, and the details yielded from such exploration would previously have been unknowable without physical intrusion of the home, such “search” constitutes a Fourth Amendment search and thus is presumptively unreasonable without the benefit of a warrant. Reversed and remanded.

State Cases

Sale of Auto After Third DUI Upheld

State v. Norman Edwards, 00-12246, 2001 La. Lexis 1652.

On appeal from a third DUI conviction, defendant challenged the constitutionality of the sale of his vehicle based on his conviction status. During an investigation of a three-car accident, a state trooper smelled alcohol and after conducting a field sobriety test, determined defendant’s blood alcohol was .114. Edwards subsequently pled guilty to DUI. His punishment included forfeiture of his vehicle. The First Circuit Court of Appeal determined the statute allowing the forfeiture was constitutional under both the U.S. and Louisiana constitutions and defendant sought relief from the Louisiana Supreme Court.

The Louisiana Supreme Court resolved what appeared to be a conflict between a statute allowing for forfeiture of vehicles driven by individuals convicted of a third DUI offense and a Louisiana constitutional provision prohibiting the state from taking personal effects unless connected to contraband drugs. Defendant argued the sale of his vehicle violated both his right to property and provisions of the Louisiana constitution regarding search and seizures. The supreme court reasoned the Fourth Amendment only protects reasonable expectations of privacy, and therefore, the public nature of vehicles and their regulation and inspection by the state reduce an individual’s reasonable expectation of privacy. The court’s thinking arose from the facts that a car is used for transportation and is not a residence or repository of personal effects, the occupants and contents travel in plain view, and cars, of necessity, are highly regulated by the government.

Further, the court determined the seizure was permissible incident to a lawful arrest or where the defendant had been tried or pled guilty after a Boykin hearing. This would allow the defendant sufficient opportunity to limit the negative consequences of having a car erroneously seized. Finally, the seizure and sale did not occur until after the defendant had been convicted. Affirmed.

Media Granted Limited Standing to Unseal Records

Wichita Eagle Beacon Co., d/b/a/ The Wichita Eagle and Media General Operations, Inc., d/b/a KWCH-TV Channel 12, v. Hon. Clark Owens II, District Judge, District Court of Sedgwich County, Kansas. No. 87,132.

Writ of mandamus granted allowing news media intervention in a criminal proceeding for the limited purpose of challenging orders sealing records. Petitioners filed to compel the respondent judge to allow them to intervene in five criminal cases relating to two quadruple homicides and related crimes. At issue was whether news media may intervene in a criminal proceeding for the limited purpose of challenging a request or order to seal a record or close a proceeding. The court sought to provide guidance to the parties involved, news media in general and the trial courts of Kansas. Recognizing that a trial court may close certain proceedings and seal the associated records of those proceedings, the court held the news media, as members of the public, may intervene in a criminal case for the limited purpose of challenging a pretrial request or order to seal a record or to close a proceeding. The court reasoned that allowing the news media such limited standing “may provide a trial court with the benefit of argument on the question of closure by an advocate of First Amendment and common-law interests.” Other potential benefits to be derived from such limited standing include: allowing the court and respective community to make a fully informed closure decision, eliminate the need to stop the proceeding pending an appellate court’s decision regarding the media’s challenge, increase judicial economy and result in a more efficient use of judicial resources.

Federal Cases

Probable Weapon Inadequate to Justify No-Knock Warrant

U.S. v. John D. Brown, No. 99-2120, 2001 U.S. App. Lexis 11727.

Acting on tips defendant was dealing drugs and possessed a firearm, officers went before a magistrate and verbally sought a no-knock search warrant to prevent the suspected drugs from being destroyed and to ensure officers’ safety. On its face, however, in requesting the warrant, no showing was made regarding any suspicion that the defendant had a propensity for violence. The complaint failed to include language indicating the police were seeking a no-knock warrant. Officers executed the warrant without knocking or announcing their presence and upon encountering the defendant in the residence, located suspected drugs and several firearms. Defendant admitted to officers the drugs would be found in his bedroom. His subsequent motion to suppress was denied after the court reasoned the tips created a reasonable suspicion that alerting occupants as to the officers’ presence might cause them to use the suspected firearms and destroy the evidence. Accordingly, defendant pled guilty and was sentenced to 135 months imprisonment followed by three years supervised probation.

Upon review, the appellate court determined that while the officer may have believed he had been granted a no-knock warrant, the actual language of the signed warrant failed to contain language authorizing such actions irrespective of the officer’s verbal communications with the magistrate at the time of issuance.

Held: The evidence did not indicate sufficient potential danger to officers’ safety to warrant a no-knock search. The probable presence of a weapon alone, without some showing of defendant’s propensity to violence, was inadequate to justify the no-knock warrant. Further, the large quantities of drugs found rendered their destruction unlikely. Order denying defendant’s motion was vacated and the case remanded.

Turning Key in Lock Does Not Constitute Seizure

United States v. Luis Salgado (99-5645); Wilfredo Jambu (99-5651). Nos. 99-5645/99-5651. 2001 U.S. App. Lexis 9738.

At trial, defendants were found guilty of conspiracy to possess and possession of drug charges. Telephone records indicated cell phone calls were made between the parties shortly before and after a suspected drug sale. Salgado was seen with Jambu. On one occasion, Jambu was seen opening the trunk of his car, looking furtively in each direction, and then walking to the front of a house which was under surveillance for suspected drug transaction while appearing to carry something in his hand. According to a witness, Jambu entered the house and went to the kitchen where he indicated he had purchased drugs and would call the witness later. Shortly thereafter, the witness observed a figure walking toward the fence in the backyard of the residence. Cocaine was subsequently found in this area of the fence and the wrappings from the cocaine were found in the kitchen where Jambu had been earlier.

An examination of cell phone records indicated Jambu’s phone calls to Salgado immediately before and after the drug transaction went unanswered. Jambu was seen leaving his residence and driving in the direction of Salgado’s home, ostensibly to investigate the unanswered phone calls. During this drive, he was pulled over by police. The vehicle used to transport the drugs earlier was found in the parking lot of Jambu’s complex. Police subsequently located the vehicle Jambu had used to deliver the drugs in the apartment complex parking lot. Inside the car they located a key which they inserted in a front door lock and turned the key. Officers tried the key in the lock of defendant’s apartment ostensibly to determine whether it operated the lock. They did not enter the apartment.

On appeal, Jambu claimed an expectation of privacy in the lock of his apartment door and that officers’ trying the lock, even without entering, constituted an illegal search. The court reasoned officers’ insertion of the key was for the discrete purpose of seeing whether it would turn the tumbler of the lock and did not constitute the beginning of a search. The door was located in a common area open to the public and the keyhole was open, obvious and facing the public area. Furthermore, the keyhole was not concealed and offered unrestricted access.

Held: Jambu did not have an expectation of privacy in the locks in his apartment door and the trying of the lock did not constitute a search. The information gained by officers was merely that the key worked the lock. The fact that a person may have a greater expectation of privacy in the interior of his residence versus the interior of a vehicle, does not warrant applying a different standard to an apartment door lock. Affirmed.