The New York times recently recounted a 2013 case, in which a Kansas man
pled guilty to possessing and sending child pornography. The plea came after failed attempts to suppress the prosecution’s evidence, and after the case was decided, the man filed an appeal.
He’d been caught by an automated AOL system designed to scan sent emails for already-documented child pornography images. It spotted a suspicious file in his outbox, then forwarded to the National Center for Missing and Exploited Children. The organization opened the file sans warrant, found the pornographic image, and alerted law enforcement.
Judge Gorsuch—President Trump’s pick for the empty Supreme Court seat—overturned the man’s conviction in August of 2016.
According to Gorsuch, the certain future is that “s “law enforcement partners will struggle not at all to obtain warrants to open emails when the facts in hand suggest, as they surely did here, that a crime against a child has taken place.”
Gorsuch does boast a particularly conservative bench record with regards to constitutional Fourth Amendment protections against unreasonable searches. But in other areas, he has ruled more moderately.,
Orin S. Kerr, a law professor at George Washington University, is an expert in the crossroads of technology and the Fourth Amendment. Kerr suggests that because of Judge Gorsuch's legal opinions on the subject, the implication is that he's not a "knee-jerk vote for the government," which is significant because of the as-yet-unresolved questions the Supreme Court is yet to face with regards to smartphones and internet communication in the 21st century.
As Kerr put it, “The history of the Fourth Amendment is about physically breaking into houses and taking away papers, and the big question is how do you apply that physical concept to a virtual world… Courts are struggling with that, and there is a lot of wiggle room in how to do it.”
The FBI itself is in limbo over how to navigate the murky new waters. Just this week, the website Intercept released a leaked FBI operational guide which revealed their structure of internal guidelines for using new investigate tech which may violate the Fourth Amendment.
The guide instructed agents that evidence they gathered using "Stingray" devices, which can locate the owners of cell phones, "could be deemed to constitute a search under the Fourth Amendment” adding that “there is, however, currently no specific decision on point.”
New Tech Pushes Fourth Amendment Boundaries
Judge Gorsuch was appointed to the 10th Circuit court in 2006. Since then, the judge has heard multiple cases which required careful definition of the Fourth Amendment. In 2013, a Gorsuch dealt with a case which considered whether evidence of a crime, gathered by police during a traffic stop because of faulty technology, should be allowed.
The event in question occurred when a police officer stopped a car due to an error in a license plate database. Known for its unreliability, the system incorrectly pinpointed that particular plate as invalid, but during the resulting stop, the officer located drugs in the car. Judge Gorsuch wrote for a unanimous panel that the flawed tech which led the officer to make the stop meant that it was unlawful for the prosecution to present the seized drugs as evidence.
Other cases have seen Gorsuch position himself alongside the government; in particular, in a 2012 Supreme Court ruling. The SCOTUS ruled that police officers need warrants in order to use GPS trackers to monitor the movement of criminal suspects’ vehicles. In the case heard by Gorsuch, the question was regarding such GPS evidence gathered prior to the Supreme Court clarification. Gorsuch ruled that the prosecutors would be allowed to use that evidence because at the time it was obtained, there was no rule clearly requiring warrants.
Judge Gorsuch has ruled a number of searches unconstitutional, but the majority of his rulings have favored the side of the government. But he noted the importance of warrants in general, stating that while the requirements inherently make the job of investigations more difficult, “obedience to the Fourth Amendment always bears that cost and surely brings with it other benefits.”
“Neither, of course, is it our job,” he added, “to weigh those costs and benefits but to apply the amendment according to its terms and in light of its historical meaning.”
According to Shima Baradarn Baughman, a law professor at the University of Utah, the importance of Judge Gorsuch’s Fourth Amendment decisions which respect the constitutional rights of individuals implies that he will “respect the founders’ expansive views of the rights of the individual vis-à-vis the state.”
And Sam Kamin, a University of Denver professor of law, elaborated further: “Is [Gorsuch] a liberal? No. But given who is appointing him, this is someone who is willing to view government with skepticism — not just with regard to business and regulation, but also with regard to searches conducted by law enforcement.”
Given the media and public backlash against many of President Donald Trumps cabinet appointees, who have been accused of generally lacking qualifications, or possessing particular conflicts of interest, the appointment of Judge Gorsuch to the Supreme Court seems to be much more well-received.
Michael Schmiege, a top civil rights attorney in Chicago practicing criminal law, comments, “In such a highly divided political climate, and especially at a time in which judges are in a position to redefine the limits of the constitution—sometimes at the cost of ‘legislating from the bench’—it may be reassuring to many onlookers to see a SCOTUS nominee willing to occasionally buck party lines in interest of the greater good. If confirmed, Gorsuch will serve for life—or until retirement—and the world watches with bated breath to see how the new Supreme Court will look.”
Mister Schmiege, as a defense attorney whose clients frequently fall under the umbrella of Fourth Amendment protections, is well-versed in Constitutional law. When you’re being investigated by state or local law enforcement or the FBI, and need an expert to help defend your rights to be protected from unreasonable search and seizure, don’t wait: call the law offices of Michael Schmiege right away.