Supreme Court Unanimously Holds that Placing GPS Tracking Device on Automobile Without a Valid Warrant is a Fourth Amendment "Search"

January 23, 2012 by Paul Kish

Earlier this morning the United States Supreme Court issued a unanimous 9-0 decision, holding that the police engaged in a Fourth Amendment "search" when, without the benefit of a valid warrant, they put a GPS tracking device on a suspect's vehicle. The case is Jones v. United States. This is potentially a huge ruling that we need to assess more fully in the days and weeks to come, but for now, let's look at the decision itself.

Law enforcement officials in the District of Columbia suspected Antoine Jones of being a large-scale drug trafficker. Among other investigative tools, they wanted to put a Global-Positioning-System (GPS) monitor on a vehicle that Jones regularly drove. The officers got a warrant, but messed up and did not put the monitor on the vehicle within the 10-day window authorized by the judge who issued the warrant. As a result, the monitor was put on the vehicle without the benefit of a valid warrant. The GPS monitor tracked Jones' travels for about a month, resulting in evidence that tied him to a large drug stash-house, among other information. This evidence was then used to convict Jones.

All nine justices on the Supreme Court agreed that this was an illegal search under the Fourth Amendment. Although they all reached the same result, there is a big difference between the justices as to the underlying rationale for the decision.

Justice Scalia wrote the majority opinion for himself and four other justices. Scalia basically resurrected the property-based view of the Fourth Amendment, noting that the officers engaged in an old-fashioned common law trespass when they placed the GPS monitor on the vehicle. Such a trespass is always a "search" when accompanied by an intention to obtain information.

Justice Alioto wrote a concurrence for he and three other justices. Alito wanted to retain the "reasonable expectation of privacy" ruling from the seminal Katz v. United States decision. Under Alito's theory, suppression decisions would turn not on who owned property but on whether society currently recognizes that a person has an expectation that certain information would not be exposed to law enforcement. Alito almost always tries to help the prosecution, so his theory would often result in a ruling that no "search" occurred.

Justice Sotomayor sided with Justice Scalia's majority opinion, but her concurrence may be the most prescient part of the whole case. Proving that she is beginning to be the intellectual force on the Court that many predicted, Justice Sotomayor noted that both views may become more important in light of the rapid advance of technology in our modern day world. "GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail abouther familial, political, professional, religious, and sexual associations." She further notes that because it is so cheap to do, the police will resort to such secret electronic monitoring more and more. She ponders whether most people really expect that their government might track their daily movements.

Justice Sotomayor also ponders whether we should re-think the line of cases holding that people abandon their expectation of privacy when they turn property over to a third party. She notes that we expose vast quantities of private information when communicating with a bank, or even using our internet service provider to surf for a new restaurant. She doubts whether most Americans would believe they surrendered their privacy rights in this situation just because they agreed to the ISP's terms of service.

This is a fascinating decision with roots in the past but application for the present and future. We are glad to see the Supreme Court issue a decision that recognizes the importance of personal property rights, privacy, and the need to keep government in check.

Eleventh Circuit Reverses Physician's Conviction in Federal Health Care Fraud and Overprescribing Case

January 20, 2012 by Carl Lietz

In a federal white collar criminal case originating out of the Northern District of Florida, the Eleventh Circuit recently reversed a physician's conviction and 292 month sentence. The case involved a family practice doctor who was charged by the federal government with health care fraud and overprescribing. In essence, the Government's theory of prosecution under both the health care fraud and overprescribing charges was the same -- that the family practice physician had prescribed unnecessary or excessive quantities of controlled substances without a legitimate medical purpose and “outside the usual course of professional practice.”

The charges at issue related to the treatment of twenty of the doctor's patients and two of those charges alleged that "death resulted" from the use of the controlled substances which the doctor allegedly overprescribed. Although all of the charges were significant, the "death resulting" allegation was especially significant because, as we previously reported here, it can carry a mandatory minimum sentence of 20 years and a number of doctors have received life sentences for those charges.

Like many doctors who face the loss of their livelihood and their liberty, Dr. Ignasiak made the decision to take his case to trial. At the conclusion of the trial, however, the jury returned guilty verdicts on the majority of charges and the judge sentenced the doctor to 292 months.

On appeal, the doctor raised a number of issues. But after describing those issues, the Eleventh Circuit concluded that it only needed to focus primarily on one of those issues because that issue, by itself, required the court to reverse the doctor's conviction and sentence.

The issue that the doctor successfully raised on appeal involved the manner in which the Government attempted to prove the "death resulting" allegation. In order to prove that allegation at trial, the Government (over the doctor's objection), introduced copies of autopsy reports and testimony concerning those reports, without calling as witnesses the coroners who actually prepared those reports. Based on some relatively recent authority from the United States Supreme Court, the doctor argued that the admission of this evidence violated his Sixth Amendment right to confront the witnesses against him. And on appeal, the Eleventh Circuit agreed, holding that it could not conclude that the Government proved beyond a reasonable doubt that
admitting evidence of five more patients who allegedly died as a result of Ignasiak’s conduct “did not contribute to the verdict obtained." For these reasons, the Eleventh Circuit reversed the doctor's conviction and 292 month sentence.

Interestingly, in addition to the issue of whether Dr. Ignasiak's conviction should be overturned, the Eleventh Circuit also discussed an issue involving criminal conduct committed by the Government's main expert, Dr. Arthur Jordan. According to the opinion, after Dr. Ignasiak was convicted, the Government filed a Notice with the trial court that for the first time revealed that Dr. Jordan engaged in criminal conduct beginning at an unspecified time up to and continuing until 2006. Specifically, Dr. Jordan had, on nine separate occasions, used a counterfeit badge and his United States Marshal credentials to pose as an on-duty U.S. Marshal in order to carry firearms on commercial airplanes while on personal travel. On the ninth flight, a Transportation and Security Administration (“TSA”) agent discovered Dr. Jordan’s ploy, and seized the weapons, counterfeit badge, and Marshal Service credentials. Instead of prosecuting Dr. Jordan, however, the United States allowed him to enter into a pretrial diversion agreement, although he admittedly committed federal felony offenses.

Before the district court, the Government successfully argued that the Notice it filed regarding Dr. Jordan should remain under seal in order to protect Dr. Jordan's privacy rights and to prevent potential retaliation against him. Although the district court agreed with this argument, the Eleventh Circuit rejected it, stating that "in this case, the public has a great interest in learning the contents of the Notice—namely, learning the highly material fact that Dr. Jordan, a repeat government expert witness, abused his government authority and committed acts which could have been charged as felonies. To say that the defense would have preferred to use this information to discredit Dr. Jordan’s testimony is almost certainly an understatement."

For those of you that have the time, I would certainly recommend reading the Eleventh Circuit's opinion in Ignasiak, which can be found here. Over the last few years, we have seen more and more prosecutions of doctors that prescribe controlled substances and from announcements that we have seen coming out of this and other federal districts, this prosecutorial focus is not likely to end anytime soon. Our previous post on this issue can be found here.

US Supreme Court sides with Alabama death row inmate: lawyer's missed mail should not prevent client from raising challenges

January 18, 2012 by Paul Kish

Today, by a 7-2 vote, the United States Supreme Court sided with a man on Alabama's death row. The Supreme Court overturned a decision where the Eleventh Circuit held that a death-row inmate should lose his ability to challenge his conviction just because the mail containing an order never got to the out-of-state attorneys then representing him. The case is Maples v. Thomas.

Cory Maples was convicted and sentenced to death in 1997 when represented by two attorneys who operated within Alabama's then-$1,000 limit to pay lawyers for out-of-court preparation prior to a death penalty trial. After the conviction, no local attorneys were assigned to handle his post-conviction challenges to his sentence. As has become common, a big law firm (New York's Sullivan & Cromwell) assigned two associates to work on the post-conviction portion of Mr. Maples' case. These young lawyers enlisted an Alabama lawyer to act as local counsel, as required by local rules and custom. The Sullivan & Cromwell attorneys began formulating an attack as to whether trial counsel were constitutionally effective when representing Maples at the sentencing phase of the trial.

In 2003 the judge handling the post-conviction aspect issued a ruling denying the claims raised by the Sullivan & Cromwell attorneys. Unfortunately, these lawyers had by then moved on to greener pastures, one taking a clerkship with a federal judge, the other getting a position in Europe. The Sullivan & Cromwell mailroom returned the letters as being "undeliverable." The clerk never bothered to check with Sullivan & Cromwell, or contact the personal addresses or phone numbers that the young attorneys had listed when applying for permission to practice in Alabama. The local attorney likewise did nothing.

The time for appealing from the judge's order passed. Someone at Sullivan & Cromwell figured out the problem, and petitioned for permission to file a tardy appeal of that order. From that point forward, Alabama prosecutors successfully argued that Mr. Maples was therefore forever barred from raising his claims. All of the Alabama courts agreed with the prosecutors, as did the U.S. District Judge to whom the matter was assigned.

On appeal to the Eleventh Circuit, Maples made persuasive arguments showing that he did not have an "adequate" method for challenging the failure to let him litigate his claims. More importantly, he demonstrated that the interests of justice demanded that a death sentence should not turn on the performance of mail room employees or clerks, and he should not be prevented from challenging his sentence just because changes of address prevented his lawyers from receiving a court order. As seems to be standard practice in the Eleventh Circuit, that court gleefully denied his claims, pointing to the raft of prosecution-oriented decisions saying that clients can sometimes suffer because of their lawyer's missteps. The majority in the Eleventh Circuit did not seem to care that a man's life was in the balance. Fortunately, Judge Rosemary Barkett on the Eleventh Circuit did care. She penned a strenuous dissent, and her arguments were echoed in the Supreme Court ruling issued today.

In technical terms, today's decision holds that these facts were sufficient "cause" so as to excuse his "procedural default" in not filing a timely challenge to the 2003 order denying relief. But in a broader sense, this ruling stands for the proposition that at least seven justices were able to see the forest for the trees, and would not let a petty and cramped view of justice prevail. Bravo!