The common-law rule that a person may resist an unlawful arrest.

In People v Moreno, Jr, ___ Mich ___ (#41837, 4/20/2012) the defendant was charged with resisting and obstructing a police officer under MCL 750.81d after defendant struggled with officers who had entered his home unlawfully. Defendant was charged with resisting and obstructing a police officer in violation of MCL 750.81d.

In Michigan, obstructing a police officer has been recognized as a common-law crime, as well as an offense governed by statute.  However, the right to resist unlawful arrests, and other unlawful invasions of private rights, is well established in our state’s common law.  In explaining the common-law right to resist an unlawful arrest, “one may use such reasonable force as is necessary to prevent an illegal attachment and to resist an illegal arrest” and that “the basis for such preventive or resistive action is the illegality of an officer’s action, to which [a] defendant immediately reacts.”

The Supreme Court held that MCL 750.81d does not abrogate the common-law right to resist illegal police conduct, including unlawful arrests and unlawful entries into constitutionally protected areas.  People v Ventura, 262 Mich App 370 (2004) was overruled to the extent that it held that the Legislature affirmatively chose to modify the traditional common-law rule that a person may resist an unlawful arrest. Because the Court of Appeals in this case relied on Ventura and extended its holding to the context of illegal entries of the home, the Court reversed the judgment of the Court of Appeals and remanded the case to the trial court. On remand, the trial court was to grant defendant’s motion to quash the charges on the basis of its ruling that the officers’ conduct was unlawful.

Effective assistance of counsel at the pretrial stage.

In People v Douglas, __ Mich App __ (#301654, 4/12/2012) the defendant argued that he was denied the effective assistance of counsel at the pretrial stage of the proceeding because counsel failed to inform him that he would be subject to a 25-year mandatory minimum sentence if he was convicted of first-degree CSC and because counsel erroneously advised him that he would not be able to live with his children if he was required to register as a sex offender pursuant to the Sex Offenders Registration Act (SORA), MCL 28.721 et seq.   On appeal the Court of Appeals agreed that counsel’s performance was constitutionally deficient, prejudiced defendant and thereby reversed his convictions for criminal sexual conduct.

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A defendant’s Sixth Amendment right to counsel extends to the plea-bargaining process. Lafler v Cooper, 566 US ___; ___ S Ct ___ (2012), slip op at 5. An ineffective assistance of counsel claim may be based on counsel’s failure to properly inform the defendant of the consequences of accepting or rejecting a plea offer. Hill v Lockhart, 474 US 52, 58 (1985). As for ineffective assistance of counsel claims generally, where a defendant’s claim is based on counsel’s failure to properly advise the defendant with respect to a plea offer, the defendant must show that his attorney’s performance “‘fell below an objective standard of reasonableness’” and that “‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Padilla v Kentucky, ___ US ___; 130 S Ct 1473, 1481-1482 (2010), quoting Strickland v Washington, 466 US 668, 688, 694 (1984). “In the context of pleas[,] a defendant must show the outcome of the plea process would have been different with competent advice.” Lafler, 566 US at ___, slip op at 5. Counsel’s assistance must be sufficient to enable the defendant the defendant “to make an informed and voluntary choice between trial and a guilty plea.” People v Corteway, 212 Mich App 442, 446 (1995).

In this case counsel’s failure to inform defendant that he would receive a 25-year mandatory minimum sentence if the jury convicted him of first-degree CSC fell below an objective standard of reasonableness. Padilla, 130 S Ct at 1482.  MCL 750.520b(2)(b) clearly provides for a mandatory 25-year minimum sentence for a violation “committed by an individual 17 years of age or older against an individual less than 13 years of age[.]” Thus, counsel’s advice to defendant that he could face up to a 20-year sentence, but that he would most likely be sentenced to a minimum term between five and eight years in accordance with the sentencing guidelines, was erroneous. Moreover, the information regarding the mandatory minimum sentence was essential to enable defendant to make an informed decision whether to accept the prosecution’s plea offer or proceed with trial. Corteway, 212 Mich App at 446.

In Lafler, 566 US at ___, slip op at 5, the Court articulated the standard that a defendant must establish in order to demonstrate prejudice in cases in which counsel’s ineffective advice led the defendant to reject a plea offer and proceed to trial. The Court stated: In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.

In this case counsel’s erroneous advice prejudiced defendant. On the morning of trial, the prosecution offered defendant the option of pleading guilty to fourth-degree CSC. Defense counsel advised defendant that, if he accepted the offer, the worst sentence that he could receive was ten months in jail with the requirement that he register as a sex offender. Counsel testified at the Ginther hearing that if he had known that first-degree CSC carried a mandatory 25-year minimum sentence, he “would have absolutely pressed [defendant] and insisted that he take the deal.” Moreover, defendant testified that, had his attorney advised him of the 25-year mandatory minimum sentence, he would have taken the plea offer because “[a] 25-year minimum is a lot different than the possibility of not going to prison.” Defendant maintained that he would have accepted the plea offer even if doing so meant that he would have been permitted very little or no contact with his children. According to defendant, counsel erroneously advised him that he would not be permitted to reside with his children for as long as he was required to register as a sex offender. Defendant testified that he did not learn until after trial that the SORA would not have prohibited him from residing with his children and that counsel’s misinformation regarding  

In Lafler, supra, the Court stated that if a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence. [Lafler, 566 US at ___, slip op at 8.]

Although the trial court determined that no error occurred because defendant was aware of the possibility that he could be sentenced to a 20-year term, there is a significant difference between the possibility of a 20- year term, but the likelihood of serving a much shorter sentence, and the certainty of serving a 25-year minimum term. Defendant has thus shown that the offer was valid, that he would have accepted the offer, and that his conviction and sentence would have been much less severe than the convictions and sentences imposed after trial. Therefore, defendant has established that counsel’s failure to inform him of the actual consequences of accepting or rejecting the plea offer prejudiced him. Lafler, 566 US at ___, slip op at 5. Having concluded that defendant satisfied both prongs of the Strickland test, we must now determine the appropriate remedy. In doing so, we note that the circumstances of this case are very similar to those in Lafler. In Lafler, 566 US at ___, slip op at 3, the respondent rejected two plea offers on the basis of defense counsel’s erroneous advice and was convicted following trial. The parties agreed that counsel’s performance was constitutionally deficient, and the respondent established the requisite prejudice. Id. at 5, 12. The Court noted that “Sixth Amendment remedies should be ‘tailored to the injury suffered from the constitutional violation’” and “must ‘neutralize the taint’ of a constitutional violation[.]” Id. at 10, quoting United States v Morrison, 449 US 361, 364-365 (1981). The Court concluded: The correct remedy in these circumstances . . . is to order the State to reoffer the plea agreement. Presuming respondent accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed. See Mich Ct Rule 6.302(C)(3) (2011) (“If there is a plea agreement and its terms provide for the defendant’s plea to be made in exchange for a specific sentence disposition or a prosecutorial sentence recommendation, the court may . . . reject the agreement”).  Today’s decision leaves open to the trial court how best to exercise that discretion in all the circumstances of the case. [Lafler, 566 US at ___, slip op at 12.]  In People v Fonville, 291 Mich App 363, 394-395(2011), this Court held that defense counsel’s representation was constitutionally defective because counsel failed to advise the defendant that pleading guilty would require him to register as a sex offender pursuant to the SORA. Here, although defense counsel advised defendant that he would be required to register as a sex offender, counsel erroneously informed defendant that his registration would preclude him from living with his children for the duration of his registry, or 20 years. The instant case differs from Lafler in one material respect. In this case, defendant was denied the effective assistance of counsel at both the plea bargain and trial stages of the proceeding.  Accordingly, taking this circumstance into consideration, we vacate defendant’s convictions and sentences and remand to the trial court for the prosecution to reinstate its plea offer made immediately before trial. If defendant refuses to accept the plea offer, he is entitled to a new trial.

Self-defense is applicable to a charge of felony firearm.

In People v Goree, __ Mich App __ (#302046, 4/17/2012) the Court of Appeals held that the trial court erred by instructing the jury that self-defense is not applicable to a felony firearm charge.

At its core, felony-firearm is a possessory offense. In People v Dupree, 486 Mich 693 (2010) the Supreme Court has found self defense applicable to another possessory offense—being a felon in possession of a firearm in violation of MCL 750.224f.  In Dupree, the defendant was a convicted felon who was legally barred from possessing a weapon. The defendant wrested a weapon away from an armed assailant during a confrontation at a family party. The defendant then used the weapon to shoot the assailant three times. Id. at 698-699.  The defendant challenged the assault charges raised against him, asserting that he acted in self defense. Id. at 699.  Similar to the current case, the jury acquitted Dupree of the assault charges but convicted him of being a felon in possession of a firearm. Id. at 700.  On appeal the Supreme Court determined that common-law self-defense was applicable to a felon-in-possession charge without the trial court’s gloss requiring a defendant to discard the weapon as soon as possible. Id. at 705-706. The Court noted that felon-in-possession statutes are “‘not intended to affect [a defendant’s] right to use a firearm in self-defense’” but were merely intended “‘to prohibit members of the affected classes from arming themselves with firearms or having such weapons in their custody or control in circumstances other than those in which the right to use deadly force in self-defense exists or reasonably appears to exists [sic].’”  

Pursuant to MCL 780.972, a criminal defendant may raise self-defense as follows: (1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies: (a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual. (b) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual. (2) An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.

In this case the trial court’s instruction that defendant’s act of felony-firearm could not be justified by self-defense was reversible error. Defendant was “entitled to have a properly instructed jury consider the evidence against him,” and is therefore entitled to a new trial on the felony-firearm charge, with an instruction on self defense.

Ineffective assistance of counsel leading to loss of an opportunity to accept a plea bargain

In Missouri v Frye, __ US __ (#10-44, 3/21/2012) the United States Supreme Court held that if a plea bargain has been offered, a defendant has the right to be informed of the offer. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence.  If a defendant shows ineffective assistance of counsel has caused the rejection of a plea leading to a trial and a more severe sentence, the question then is what constitutes an appropriate remedy.

In Lafler v Cooper, __ US __ (#10-209, 3/21/2012) the United States Supreme Court held that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.

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Sixth Amendment remedies should be “tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.” United States v. Morrison, 449 U. S. 361, 364 (1981).Thus, a remedy must “neutralize the taint” of a constitutional violation, id., at 365, while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution. See Mechanik, 475 U. S., at 72 (“The reversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place; victims may be asked to relive their disturbing experiences”).

The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of two forms. In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence. This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial. In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel’s errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.

In some situations it may be that resentencing alone will not be full redress for the constitutional injury. If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge’s sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice. See, e.g., Williams, 571 F. 3d, at 1088; Riggs v. Fairman, 399 F. 3d 1179, 1181 (CA9 2005). In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.

In implementing a remedy in both of these situations, the trial court must weigh various factors; and the boundaries of proper discretion need not be defined here. Principles elaborated over time in decisions of state and federal courts, and in statutes and rules, will serve to give more complete guidance as to the factors that should bear upon the exercise of the judge’s discretion. At this point, however, it suffices to note two considerations that are of relevance.  First, a court may take account of a defendant’s earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions. Second, it is not necessary here to decide as a constitutional rule that a judge is required to prescind (that is to say disregard) any information concerning the crime that was discovered after the plea offer was made. The time continuum makes it difficult to restore the defendant and the prosecution to the precise positions they occupied prior to the rejection of the plea offer, but that baseline can be consulted in finding a remedy that does not require the prosecution to incur the expense of conducting a new trial.

Change in Domicile, and Pierron v Pierron, 486 Mich 81 (2010)

In Gagnon v Glowacki, __ Mich App __ (#303449, 3/6/2012) the Court of Appeals concluded that the trial court did not abuse its discretion in granting the plaintiff-mother's motion to change the child's domicile to Windsor, Ontario. Further, the court held that trial court did not err in concluding that the Established Custodial Environment would not be affected. Thus, the trial court was not required to determine if a preponderance of the evidence established that the move was in the best interests of the child. (The parties have joint legal and joint physical custody but the child lives primarily with the plaintiff-mother.)

A parent of a child, whose custody is governed by court order, shall not change a legal residence of the child to a location that is more than 100 miles from the child’s legal residence at the time of the commencement of the action in which the order is issued without court approval. MCL 722.31(1). A court may permit a change in legal residence upon considering the following factors:

(a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.

(b) The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent’s plan to change the child’s legal residence is inspired by that parent’s desire to defeat or frustrate the parenting time schedule.

(c) The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.

(d) The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support

obligation.

(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

The party requesting the change of domicile has the burden of establishing by a preponderance of the evidence that the change is warranted.” McKimmy, 291 Mich App at 582. MCL 722.31(4) requires the trial court to consider the factors “with the child as the primary focus in the court’s deliberations. On its face, MCL 722.31 is only applicable when a parent attempts to change the domicile of a child to a location that is over 100 miles away. However, when a child’s custody is governed by a court order that prohibits the child from moving to another state without the permission of the court, as is the case here, regardless of the distance involved, if the proposed residence change involves leaving the state, then the factors under MCL 722.31(4) are the proper criteria for the court to consider.

With regard to MCL 722.31(4)(a), this Court has stated that “[i]t is well established that the relocating parent’s increased earning potential may improve a child’s quality of life.” Rittershaus v Rittershaus, 273 Mich App 462 (2007).  With regard to MCL 722.31(4)(b), although weekday parenting time may, in fact, be more difficult after the move, it may not necessarily contravene a finding that it is not a party’s intent to disrupt the other parent’s parenting time. This factor also involves a credibility determination, with deference to the trial court.  With regard to MCL 722.31(4)(c), providing a parent with additional parenting time, even if other parenting time is negatively affected, can provide an adequate basis for preserving and fostering the parental relationship between the other parent and the child. This could even give the other parent additional extended time, which could foster an even closer parent-child relationship. In addition, a  history of cooperation regarding parenting time suggests that the parents would comply with the modified order. Moreover, plaintiff’s willingness to subject herself to the jurisdiction of the court could be able to ensure compliance with its orders. See Brausch v Brausch, 282 Mich App 339 (2009). The inquiry is “whether the proposed parenting time schedule provides ‘a realistic opportunity to preserve and foster the parental relationship previously enjoyed’ by the nonrelocating parent.” McKimmy, 291 Mich App at 584, quoting Mogle, 241 Mich App at 204.  Furthermore, “the visitation plan need not be equal to the prior visitation plan in all respects.” Brown, 260 Mich App at 603.

Established Custodial Environment

After granting a change of domicile, the trial court must determine whether there will be a change in the established custodial environment and, if so, determine whether the relocating parent can prove, by clear and convincing evidence, the change is in the child’s best interest.

According to MCL 722.27(1)(c), [t]he custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship should also be considered. As used in this act, “best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court: (a) The love, affection, and other emotional ties existing between the parties involved and the child. (b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any. (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs. (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity. (e) The permanence, as a family unit, of the existing or proposed custodial home or homes. (f) The moral fitness of the parties involved. (g) The mental and physical health of the parties involved. (h) The home, school, and community record of the child. (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference. (j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child. (l) Any other factor considered by the court to be relevant to a particular child custody dispute.

In Brown, this Court noted that it is possible to have a change of domicile without changing the established custodial environment. Id. at 596.  An established custodial environment with both parents need not change the established custodial environment if defendant were given an additional weekend per month and he were allowed to maintain his current parenting time if desired.  If, however, the move were to render defendant a weekend-only parent, a change in the established custodial environment would result. Powery v Wells, 278.

Pierron v Pierron, 486 Mich 81 (2010)

If there would be no change in the established custodial environment, the trial court is not required to determine whether plaintiff proved, by clear and convincing evidence, the move was in the best interest of the child. See Brown, 260 Mich App at 590-591. Defendant’s reliance on Pierron v Pierron, 486 Mich 81 (2010), is misplaced. Pierron did not specifically address a change of domicile under MCL 722.31. Instead, the Pierron Court was confronted with a situation where the parents, who had joint legal custody, could not agree regarding “an important decision affecting the welfare of the child.”  In such instances, the parent is required to prove by a preponderance of the evidence that the proposed change of schools would be in the best interests of the children, using the best-interest factors identified in MCL 722.23.” Pierron, 486 Mich at 89-90.

This Court has repeatedly held that if a movant can establish that a relocation of domicile under MCL 722.31 is warranted by a preponderance of the evidence and the relocation would not alter any established custodial environment, then no best-interest analysis is necessary. E.g., Spires v Bergman, 276 Mich App 432, 437 n 1 (2007) (“Only when the parents share joint physical custody and the proposed change of domicile would also constitute a change in the child’s established custodial environment is it also necessary to evaluate whether the change of domicile would be in the child’s best interest.”); Rittershaus, 273 Mich App at 470, 471.  The trial court is not required to consider the best-interest factors until it first determines that the modification actually changes the children’s established custodial environment.”; Brown, 260 Mich App at 598 n 7 (stating that only when “the relocation would result in a change in parenting time so great as to necessarily change the established custodial environment that an inquiry into the best interest factors is necessary.”). Nowhere in Pierron, did the Court explicitly overrule or modify any of this Court’s prior published opinions. Thus, Pierron differed from the present case in that it did not involve a change of domicile analysis under MCL 722.31(4) but, rather, focused on the general procedure put in place to resolve an impasse when parents cannot decide on important decisions affecting the welfare of the child. Pierron, 486 Mich at 85, citing MCL 722.25 and Lombardo v Lombardo, 202 Mich App 151 (1993). We find that the situation presented in a change of domicile case under MCL 722.31 is distinguishable from where two parents cannot agree on an important decision affecting a child’s welfare. In the former, the decision involves more than the child – it also necessarily directly impacts the relocating parent. Furthermore, there is a specific statute outlining the requirements necessary to grant a change of domicile.  Conversely, the general provision of MCL 722.25 does explicitly reference the “best interests of the child.” But, as our Supreme Court has stated, “[W]here a statute contains a general provision and a specific provision, the specific provision controls.” Duffy v Mich Dep’t of Natural Res, 490 Mich 198, 215 (2011). If the Legislature intended for the best-interest factors of MCL 722.21 to be evaluated in a change of domicile case, it easily could have done so. Instead, it limited the analysis to the factors enumerated in MCL 722.31(4).

Malpractice, Summary Disposition, Premature, Discovery

In Van Buren v Covenant Healthcare System, et al, Unpublished Per Curiam (#297019, 1/5/2012) the Court of Appeals reaffirmed that a motion filed pursuant to MCR 2.116(C) may not be granted unless “no factual development could possibly justify recovery.” Spiek v Dep’t of Transportation, 456 Mich 331 (1998).  The Court of Appeals held that even if some or all the relevant actions or omissions were committed by medical professionals, further discovery was appropriate and it was thereby premature for the trial court to determine by summary disposition whether those actions or omissions involved medical judgment.

In Bryant v Oakpoint Villa, 471 Mich 411 (2004) the Supreme Court held that an ordinary negligence claim may be prosecuted by a patient against a medical provider where either of two circumstances are present: (a) the allegedly negligent actions were not taken in the course of a professional relationship; or (b) the claim does not require expert testimony because it does not involve questions of medical judgment beyond the realm of common knowledge and experience. Id. at 422. 

Bryant makes clear that the issue of whether the claim sounds in medical malpractice or negligence is not to be resolved through generalized descriptions of the nature of the claim, but instead, by a specific review of the facts. In Van Buren, supra, the complaint was necessarily drafted without access to proofs concerning which hospital employee was supposed to file the biopsy report, whether and when the report was actually filed and whether it was seen by or available to the surgeon. Indeed, other than knowing that her breasts were removed despite a biopsy report showing an absence of cancer, plaintiff, like the trial court, has actual knowledge of almost none of the salient facts. The complaint, accordingly, speaks broadly and encompasses both medical and non-medical personnel. Whether or not the persons ultimately responsible for the alleged miscommunication were medical professionals or clerks, secretaries or other non-medical personnel is not yet known, except perhaps to defendants.

The Fourth Amendment in the computer age.

The United States Supreme Court In United States v Jones, __ US __ (2012)  ruled unanimously on Monday that law enforcement agents must obtain a search warrant before attaching a GPS device to a vehicle to track a drug dealer suspect. 

In this country the collection of digital evidence in criminal cases is governed at the Federal and State levels by numerous constitutional and statutory provisions, including statutes that regulate the communications and computer industries and that directly govern the gathering and use of digital evidence.  At the forefront is the specific language of the United States Constitution that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.  US Const, Am IV.

In Jones, supra the Justice Department argued that it didn't need to obtain permission to attach a global positioning system to a Jeep Grand Cherokee owned by the wife of a Washington, D.C., nightclub owner and suspected drug dealer, Antoine Jones, who had been sentenced to life in prison.  The government had obtained a search warrant but failed to install the device in the 10 days it was allowed to do so. The government conceded it didn't have a proper warrant when it attached the device, but argued to the Supreme Court that it wasn't necessary because defendant Jones had no expectation of privacy in that the tracking of the vehicle could have been permissibly done by the use of government agents following the vehicle.  In Jones, supra, the FBI captured 2,000 pages of data over a four-week period as it tracked the vehicle - and even had to replace the battery when it was sitting in a public parking lot in Maryland.

Initially, a federal district judge agreed with the Government position and upheld most of the GPS search, saying that "a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."  On further appeal this determination was reversed and the matter ended up before the Supreme Court.

Justice Antonin Scalia, writing for a unanimous court, said installing the GPS device constitutes a search under the Fourth Amendment. "The government physically occupied private property for the purpose of obtaining information," Scalia wrote.  Scalia's opinion was joined by all eight members as to the judgment - but five other justices joined separate opinions explaining their reasons.

Although its implications remain undecided the Opinion is recognition of one’s existing rights under the Fourth Amendment notwithstanding the ever-changing circumstances in today’s technology and computer age.