Administrative Searches - PowerPoint Presentation

Slide1

Administrative Searches

From The Founding to Snowden

More Information on Administrative SearchesSlide2

2

Cultural Knowledge of Searches

Most laypersons, and many lawyer's perceptions of search law are created by the popular media

Every police show has a recurring plot line about the evidence obtained with the questionable warrant or without a warrant

Every courtroom drama has its fights over the exclusion of improperly obtained evidence

Prior to 9/11, these criminal law searches were all most people knew about.Slide3

Post-9/11 Cultural Knowledge of Searches

The media is now saturated with antiterrorism themed programming that show shadowy agencies that seem completely unfettered by law.

The NSA is caught exceeding its authority by intercepting all phone traffic and the result is that it is given more authority.Edward Snowden showed us that the NSA is exceeding all bounds and lying to congress about it.3Slide4

The Death of Privacy

Facebook

Your personal information as commodityCell phoneYour personal tracking deviceGoogleAll your deepest secrets as commodityYou are now the product4Slide5

5

Searches in Law School Teaching

Law students typically spend about an hour on administrative searches in criminal law

Burger, Biswell, and the doctrine of pervasively regulated industries

Seen as an exception to the general rule that a search must be based on a 4th Amendment warrant

In reality, the 4th Amendment warrant requirement is better seen as a fairly narrow exception to the right to search on a general warrant or no warrant at all.Slide6

Objective of this Presentation

Show that it is the 4

th amendment warrant requirement that is the exception.Give you the historic background to evaluate modern administrative search law.Introduce the core unsolved problem (not addressed by the United States Supreme Court) issue:Is the use of the materials obtained limited by the purpose of the original search?6Slide7

7

Fourth Amendment

"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." Slide8

Criminal Law Searches

The Exclusionary Rule

8Slide9

9

Criminal Law Searches

What does the 4th Amendment require for searches to find evidence in criminal prosecutions?

Warrant that specifically describes the premises to be searched and what is being sought

Probable cause based on reliable information

Independent magistrate approvalSlide10

Enforcement of the 4th

Amendment

Common law remediesTrespass, invasion of privacyExclusionary ruleOnly triggered when the evidence is used in a criminal trialWeeks v. United States, 232 U.S. 383 (1914)Mapp v. Ohio, 367 U.S. 643 (1961)10Slide11

11

Exceptions to the Exclusionary Rule

No expectation of privacy (plain view)

Public places

Ancillary to warrant

Special circumstances

Border check points

Automobile searches

Exigent CircumstancesSlide12

Private Entities and the Constitution

The Constitution limits government actions only .

The Congress can pass laws applying constitutional principles such as Civil Rights Acts to private entities.Congress has not applied 4th Amendment principles to private parties.There are no limitations on private parties providing information to the government.12Slide13

13

Silver Platter Doctrine Revisited

Private individual can collect evidence without a warrant, or even illegally, and give to the police.

Must act independently of the government.

Cannot be “government agent”

Elkins v. United States

, 364 U.S. 206 (1960)

State police illegally obtain evidence and hand it to federal police

No silver platter doctrine, both are state actorsSlide14

Administrative Searches

Public Health and Safety Searches

14Slide15

Public Health and Safety Searches

Vermin control (rats)

Building code violations / dangerous buildingsOccupancy violationsCommunicable disease controlFire inspectionsSanitation violations15Slide16

Frank v. Maryland, 359 U.S. 360 (1959)The First 158 Years of Admin Searches

What is Frank

about?http://biotech.law.lsu.edu/cases/searches/frank_v_maryland.htmThis is a criminal conviction for refusing to allow a warrantless administrative inspection of a private home.16Slide17

The Enabling Act

"Whenever the Commissioner of Health shall have cause to suspect that a nuisance exists in any house, cellar or enclosure, he may demand entry therein in the day time, and if the owner or occupier shall refuse or delay to open the same and admit a free examination, he shall forfeit and pay for every such refusal the sum of Twenty Dollars."

17Slide18

Is a Man's Home His Castle?

"In 1765, in England, what is properly called the great case of

Entick v. Carrington, 19 Howell's State Trials, col. 1029, announced the principle of English law which became part of the Bill of Rights and whose basic protection has become imbedded in the concept of due process of law. It was there decided that English law did not allow officers of the Crown to break into a citizen's home, under cover of a general executive warrant, to search for evidence of the utterance of libel."18Slide19

Does the 4th Amendment Bar all Warrantless Searches?

"Certainly it is not necessary to accept any particular theory of the interrelationship of the Fourth and Fifth

Amendments to realize what history makes plain, that it was on the issue of the right to be secure from searches for evidence to be used in criminal prosecutions or for forfeitures that the great battle for fundamental liberty was fought. "19Slide20

Does History Matter?

"The Fourteenth Amendment, itself a historical product, did not destroy history for the States and substitute mechanical compartments of law all exactly alike. If a thing has been

practiced for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it, . . . ." Jackman v. Rosenbaum Co., 260 U.S. 22, 31. (1922)(Holmes)20Slide21

Have Times Changed?

The power here challenged rests not only on a long history of its exercise. It is a power which was continually strengthened and applied to wider concerns through those very years when the right of individuals to be free from peremptory official invasion received increasing legislative and judicial protection. Nor is this a situation where a new body of knowledge displaces previous premises of action

. There is a total want of important modification in the circumstances or the structure of society which calls for a disregard of so much history.21Slide22

Are These Searches Still Necessary?

"The need for preventive action is great, and city after city has seen this need and granted the power of inspection to its health officials; and these inspections are apparently welcomed by all but an insignificant few. Certainly, the nature of our society has not vitiated the need for inspections first thought necessary 158 years ago, nor has experience revealed any abuse or inroad on freedom in meeting this need by means that history and dominant public opinion have sanctioned."

22Slide23

Why Not Require a Warrant?

"If a search warrant be constitutionally required, the requirement cannot be flexibly interpreted to dispense with the rigorous constitutional restrictions for its issue. A loose basis for granting a search warrant for the situation before us is to enter by way of the back door to a recognition of the fact that by reason of their intrinsic elements, their historic sanctions, and their safeguards, the Maryland proceedings requesting permission to make a search without intruding when permission is denied, do not offend the protection of the Fourteenth Amendment."

23Slide24

The Dissent

Douglas, Black, Warren, and Brennan

24Slide25

What was  Entick v. Carrington

Really About?

"In the effort to destroy the freedom of the press, by a strained exercise of the prerogative a general warrant was issued in 1763 for the discovery and apprehension of the authors and printers (not named) of the obnoxious No. 45 of the North Briton, which commented in severe and offensive terms on the King's Speech at the prorogation of Parliament and upon the unpopular Peace of Paris recently (February 10, 1763) concluded. Forty-nine persons, including Wilkes, were arrested under the general warrant; and when it was ascertained that Wilkes was the author, an information for libel was filed against him on which a verdict was obtained."25Slide26

Another View of History

"The basic premise of the prohibition against searches was not protection against self-incrimination; it was the common-law right of a man to privacy in his home, a right which is one of the indispensable ultimate essentials of our concept of civilization

... It belonged to all men, not merely to criminals, real or suspected...To say that a man suspected of crime has a right to protection against search of his home without a warrant, but that a man not suspected of crime has no such protection, is a fantastic absurdity."26Slide27

Are Health Inspections so Threatening?

"One

invasion of privacy by an official of government can be as oppressive as another. Health inspections are important. But they are hardly more important than the search for narcotic peddlers, rapists, kidnappers, murderers, and other criminal elements. As we have seen, searches were once in their heyday when the government was out to suppress the nonconformists...Many today would think that the search for subversives was even more important than the search for unsanitary conditions."27Slide28

Do Most People Cooperate?

"Figures submitted by the Baltimore Health Department show that citizens are mostly cooperative in granting entrance to

inspectors. There were 28,081 inspections in 1954; 25,021 in 1955; 35,120 in 1956; 33,573 in 1957; and 36,119 in 1958. And in all these instances the number of prosecutions was estimated to average one a year. Submission by the overwhelming majority of the populace indicates there is no peril to the health program. One rebel a year (cf. Whyte, The Organization Man) is not too great a price to pay for maintaining our guarantee of civil rights in full vigor."28Slide29

Is the Dissent Right?

Does the low number of resisters really tell us the administrative cost of a warrant requirement?

What might make that number too low?Does the Majority's separation of criminal and administrative searchers make sense?This sets up Camera and See.29Slide30

30

Camara v. Municipal Court, 387 U.S. 523 (1967)

Where did this happen?

San Francisco

What violations were the housing inspectors looking for?

Violation of the occupancy permit

What crime was defendant charged with?

Not allowing the inspection

Factually the same as

FrankSlide31

31

The Municipal Ordinance

"Sec. 503 RIGHT TO ENTER BUILDING

. Authorized employees of the City departments or City agencies, so far as may be necessary for the performance of their duties, shall, upon presentation of proper credentials, have the right to enter, at reasonable times, any building, structure, or premises in the City to perform any duty imposed upon them by the Municipal Code." Slide32

32

The Writ of Prohibition

What are the defendant's allegations of unconstitutional actions?

Unconstitutional search under the 4th Amendment, as applied to the states by the 14th Amendment

Not granted by the state courtsSlide33

33

Are the Times Changing?

What else is going on at the court and in the country in the late 1960s?

Can administrative violations lead to criminal prosecution?

What bind does this put a property owner in who wants to challenge the authority of the inspector?

How does the

Camara

court think this changes the

Frank

balancing factors?

Could administrative searches be abused?Slide34

34

Why is the Intent of the Search Critical?

Since the inspector does not ask that the property owner open his doors to a search for "evidence of criminal action" which may be used to secure the owner's criminal conviction, historic interests of "self-protection" jointly protected by the Fourth and Fifth Amendments are said not to be involved, but only the less intense "right to be secure from intrusion into personal privacy." (

Camara

)Slide35

35

Does a Warrant Requirement Mean No Searches?

In assessing whether the public interest demands creation of a general exception to the Fourth Amendment's warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon

whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search

. (Camara)

A precedent for

Matthews

?Slide36

36

Standards for

Criminal Probable Cause

"For example, in a criminal investigation, the police may undertake to recover specific stolen or contraband goods. But that public interest would hardly justify a sweeping search of an entire city conducted in the hope that these goods might be found.

Consequently, a search for these goods, even with a warrant, is "reasonable" only when there is "probable cause" to believe that they will be uncovered in a particular dwelling."Slide37

37

Government Interest in Public Health Searches

The primary governmental interest at stake is to prevent even the unintentional development of conditions which are hazardous to public health and safety.

Because fires and epidemics may ravage large urban areas, because unsightly conditions adversely affect the economic values of neighboring structures, numerous courts have upheld the police power of municipalities to impose and enforce such minimum standards even upon existing structures. Slide38

38

General Versus Specific Probable Cause

There is unanimous agreement among those most familiar with this field that the only effective way to seek universal compliance with the minimum standards required by municipal codes is through routine periodic inspections of all structures.

It is here that the probable cause debate is focused, for the agency's decision to conduct an area inspection is unavoidably based on its appraisal of conditions in the area as a whole,

not on its knowledge of conditions in each particular building. Slide39

Punishment versus Prevention

Why is criminal law retrospective?

Why is a crime the predicate to probable cause?Even when you are trying to prevent a crime, you need criminal predicate acts.Prevention is about preventing harm, not about prosecuting a crime, even if the future harm is a crime.No crime - no probable cause.39Slide40

40

Factors Supporting General Probable Cause

First, such programs have a long history of judicial and public acceptance.

Second, the public interest demands that all dangerous conditions be prevented or abated, yet it is doubtful that any other canvassing technique would achieve acceptable results.

Finally, because the inspections are neither personal in nature

nor aimed at the discovery of evidence of crime

, they involve a relatively limited invasion of the urban citizen's privacy. Slide41

41

The Frank Consensus

"Time and experience have forcefully taught that the power to inspect dwelling places, either as a matter of systematic area-by-area search or, as here, to treat a specific problem, is of indispensable importance to the maintenance of community health; a power that would be greatly hobbled by the blanket requirement of the safeguards necessary for a search of evidence of criminal acts." Slide42

42

Preventing Harm versus Punishing Criminals

"The need for preventive action is great, and city after city has seen this need and granted the power of inspection to its health officials; and these inspections are apparently welcomed by all but an insignificant few. Certainly, the nature of our society has not vitiated the need for inspections first thought necessary 158 years ago, nor has experience revealed any abuse or inroad on freedom in meeting this need by means that history and dominant public opinion have sanctioned." Slide43

43

Standards for an Area Warrant

Such standards, which will vary with the municipal program being enforced, may be based upon:

the passage of time

the nature of the building (e. g., a multi-family apartment house)

the condition of the entire area

[T]hey will not necessarily depend upon specific knowledge of the condition of the particular dwelling.Slide44

44

Emergency Exceptions

[N]othing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situationsSlide45

45

Examples of Emergencies

North American Cold Storage Co. v. City of Chicago, 211 U.S. 306

(seizure of unwholesome food);

Jacobson v. Massachusetts, 197 U.S. 11

(compulsory smallpox vaccination);

Compagnie

Francaise

v. Board of Health, 186 U.S. 380

(health quarantine);

Kroplin

v.

Truax

, 119 Ohio St. 610, 165 N. E. 498

(summary destruction of tubercular cattle)Slide46

46

Practical Considerations

When does the Court say is the time to get an area warrant?

Why would this be burdensome to the agency?

What would you suggest as an alternative?

Would this be consistent with the dissent in

Frank

observations about compliance?Slide47

47

See v. Seattle, 387 U.S. 541 (1967)

Routine fire inspection of a commercial warehouse

Done as part of a city-wide sweep

Owner was prosecuted for refusing to allow the inspectionSlide48

48

Key Question

Do business establishments have a diminished expectation of privacy under the 4th Amendment?

"The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. "Slide49

49

Further Gloss on Area Warrant

"But the decision to enter and inspect will not be the product of the unreviewed discretion of the enforcement officer in the field. "Slide50

50

The Dissent

Today the Court renders this municipal experience, which dates back to Colonial days, for naught by overruling

Frank v. Maryland

and by striking down hundreds of city ordinances throughout the country and jeopardizing thereby the health, welfare, and safety of literally millions of people.Slide51

51

Predicted Impact

But this is not all. It prostitutes the command of the Fourth Amendment that "no Warrants shall issue, but upon probable cause" and sets up in the health and safety codes area inspection a newfangled "warrant" system that is entirely foreign to Fourth Amendment standards. It is regrettable that the Court wipes out such a long and widely accepted practice and creates in its place such enormous confusion in all of our towns and metropolitan cities in one fell swoop.Slide52

52

State Law Limitations

See

and

Camara

only deal with the US Constitutional Issues

Some state constitutions have greater protections and the legislatures can enact greater protections

City of Seattle v. McCready, 868 P.2d 134 (

Wa

. 1994)

Requires specific legislative authority for general area warrants.Slide53

53

U.S. v. Biswell

, 406 U.S. 311 (1972)

Federally licensed gun dealer

Police officer and federal treasury agent show up and ask to see the books and the storeroom

Owner consents and they find an illegal weapon

Owner is prosecuted and attacks the search as not having even an area warrantSlide54

54

Pervasively Regulated Industries

When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection.

Each licensee is annually furnished with a revised compilation of ordinances that describe his obligations and define the inspector's authority. The dealer is not left to wonder about the purposes of the inspector or the limits of his task. (Biswell)Slide55

55

OSHA -

Marshall v. Barlow's

, 98 S. Ct. 1816, 436 U.S. 307 (1978)

OSHA conducts searches of OSHA regulated businesses to assure compliance with worker health and safety laws

Employer refused entry to an OSHA inspector who did not have a warrant to inspect the business

United States Supreme Court found that merely being subject to Interstate Commerce Clause regulation does not make a business pervasively regulated

OSHA inspector must get an area warrant if refused entry.

No probable cause is necessary

Congress could probably give OSHA the authoritySlide56

Legitimate Administrative Search or Subterfuge?

Matthews

tells us that in administrative matters, everything is a cost benefit analyses.The only exception are the criminal law due process protections.56Slide57

Limiting What Criminal Means

Addington

v. Texas – mental healthBell v. Wolfish – pretrial detentionBarefoot v. Estelle – future dangerousness for death penalty determinationsSchall v. Martin – juvenile detentionAllen v. Illinois – locking up the criminally insaneHilton v. Braunskill – habeas corpus after a conviction was overturnedUnited States v. Salerno – Bail Reform Act

57Slide58

58

New York v. Burger

, 482 U.S. 691 (1987)

Companion to

Hilton

and

Salerno

Search of junk yard for stolen goods

Lower court excluded the evidence in the criminal trial:

"the fundamental defect [of 415-a5] . . . is that [it] authorize[s] searches undertaken solely to uncover evidence of criminality and not to enforce a comprehensive regulatory scheme.

The asserted 'administrative

schem

[e]' here [is], in reality, designed simply to give the police an expedient means of enforcing penal sanctions for possession of stolen property."Slide59

59

Does the History of the Regulations Matter?

Firearms and alcohol have always been regulated

We pointed out that the doctrine is essentially defined by "the pervasiveness and regularity of the federal regulation" and the effect of such regulation upon an owner's expectation of privacy. See id., at 600, 606. We observed, however, that "the duration of a particular regulatory scheme" would remain an "important factor" in deciding whether a warrantless inspection pursuant to the scheme is permissible. (United States Supreme Court in Burger)Slide60

60

Alternative Standard

...where the privacy interests of the owner are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment. (Burger)Slide61

Criteria for Searches of Regulated IndustriesSlide62

62

Substantial Government Interests

First, there must be a "substantial" government interest that informs the regulatory scheme pursuant to which the inspection is made.

("substantial federal interest in improving the health and safety conditions in the Nation's underground and surface mines");

(regulation of firearms is "of central importance to federal efforts to prevent violent crime and to assist the States in regulating the firearms traffic within their borders");

(federal interest "in protecting the revenue against various types of fraud"). Slide63

63

"Necessary to further [the] regulatory scheme."

"For example, in

Dewey

we recognized that forcing mine inspectors to obtain a warrant before every inspection might alert mine owners or operators to the impending inspection, thereby frustrating the purposes of the Mine Safety and Health Act -- to detect and thus to deter safety and health violations."Slide64

64

Must be a constitutionally adequate substitute for a warrant

In other words, the regulatory statute must perform the two basic functions of a warrant:

it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope,

and it must limit the discretion of the inspecting officers.Slide65

65

What is necessary to substitute for a warrant?

To perform this first function, the statute must be "sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes."

In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be "carefully limited in time, place, and scope.“

Reasonable expectation of privacy controls.Slide66

How Do These Apply to Burger?Slide67

67

One

First, the State has a substantial interest in regulating the vehicle-dismantling and automobile-junkyard industry because motor vehicle theft has increased in the State and because the problem of theft is associated with this industry. Slide68

68

Two

Second, regulation of the vehicle-dismantling industry reasonably serves the State's substantial interest in eradicating automobile theft. It is well established that the theft problem can be addressed effectively by controlling the receiver of, or market in, stolen property. Slide69

69

Three

Finally, the "time, place, and scope" of the inspection is limited

The officers are allowed to conduct an inspection only "during [the] regular and usual business hours."

The inspections can be made only of vehicle-dismantling and related industries.

And the permissible scope of these searches is narrowly defined:

the inspectors may examine the records, as well as "any vehicles or parts of vehicles which are subject to the record keeping requirements of this section and which are on the premises." Slide70

70

Licenses and Permits

Restaurant license, elevator license, shellfish processing license

Issued on set criteria established through stature or regulation

Can require consent to searches as a condition of licensure

Restaurant licenses - any time during regular business hoursSlide71

71

Are these pervasively regulated industries?

Substantial Government Interests?

Necessary to further the regulatory scheme?

Is there a constitutionally adequate substitute for a warrant?

Has pervasive regulation been supplanted by an expectation of privacy test?Slide72

72

Does the Exclusionary Rule Apply? -

Trinity Industries v. OSHA

, 16 F.3d 1455 (6th Cir. 1994)

OSHA used an employee complaint as the basis for a probable cause warrant for a specific inspection, as provided in the OSHA Act.

Inspector also did a general search, claiming it was part of an area warrant type search

Court found that a complaint driven search does not meet the neutral selection criteria for an area warrant

Court allowed the use of the improperly obtained records for administrative actions to correct risks, but not as a basis for punishing (fining) the employerSlide73

73

What about Evidence of Unrelated Crime?

What if the housing inspector finds your stash of stolen DVD players?

What if the restaurant inspector finds the cook's stash of cocaine?

What did Camara say?

Finally, because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen's privacy. Slide74

74

Administrative Searches and Terrorism

How has administrative search theory been used in the searches done for terrorist activities?

What is the constitutional justification for such searches, under the

See

and

Camara

rulings?

What implications would such searches have for later criminal prosecutions?

This has been playing out in criminal trials for the Guantanamo detainees.Slide75

75

FISA

Foreign

Intelligence Surveillance

Act (FISA) uses a secret court to approve warrants and must assume that everything in the warrant is correct.

These are warrants for pre-crime, so there is limited specificity - They resemble administrative warrants

If regular crime is found with FISA, the evidence can be used for prosecution.Slide76

Subpoenas and Reports

76Slide77

77

Government as Database

A primary function of the federal government is collecting information.

Information is used for enforcement

IRS

EPA air and water pollution monitoring

Information is used for research and standards

CDC flu reporting system

Unemployment reporting

Federal reserve data collection on bankingSlide78

78

Methods of Data Collection

Administrative searches and inspections

1st and 3rd party

These are also used by national security agencies

First party reporting is reporting about your or your businesses own activities

Can raise 4th & 5th amendment issues

Third party reporting is about other people

Privacy issues, but no 4th and 5th amendment issues

Police and national security intelligence

Data from private aggregators - Equifax, FacebookSlide79

Reasonable Expectation of Privacy

Basic premise

You do not have a reasonable expectation of privacy in data you provide to third parties.ExceptionsSpecific statutory protectionsTraditional legal privilegesHow has the reality of third party data changed since this concept developed decades ago?79Slide80

80

Reporting Laws

Reporting requirements - class of persons

Usually require the creation of a report

Usually agency sanctions for noncompliance

As opposed to judicial

Most state and federal agencies that have significant regulatory powers may require reporting under their general grant of authority

If the agency has a limited grant of authority or does not have a regulatory role (CDC), it will need a specific authorization to require reportingSlide81

Subpoenas

Just like subpoenas

in civil litigationDirected at a single, identified individual or companyAsk for existing documents Can ask for testimonyEnforced through judicial orders and contempt, not agency processSubpoena power requires a specific statutory grant of authority.

81Slide82

82

State Police Power Reporting

The first agency reporting requirements were promulgated by state agencies

Communicable disease reporting began in the colonies and was carried over to the state and city governments

Reports of smallpox were critical to quarantines and vaccination programs

Requiring physicians to report bad physicians - not in LASlide83

83

Whalen v. Roe

, 429 US 589 (1977) – not in book

Required reporting of narcotics prescriptions by physicians and pharmacies

Intended to develop data on abuse

Also intended to collect data for prosecution

What are the privacy concerns of the patients?

What about the physicians and pharmacies?

The government must avoid unneeded disclosureSlide84

84

Contemporary Third Party Reporting

Public health

STIs

Tuberculosis

Vital statistics and disease registries

Law enforcement

Child, spousal, and elder abuse

Violent injuries, including gun shots

Cash transactions over 10K

What privacy issues are implicated by each of these types of reporting?Slide85

85

What about Legal Privileges?

Must respect traditional common law privileges

Attorney client, priest penitent, spousal

But this is a balancing

Enabling law can override statutory privileges

doctor patient is only statutory

federal law does not implicitly recognize state privileges

Can child abuse reporting be applied to lawyers?

Priests?Slide86

86

Enforcement of Third Party Reporting

Governmental

Loss or limitation of professional license

Administrative fine

Criminal prosecution

There are few enforcement actions for public health reporting

Real enforcement for financial and environmental reporting

Private

Negligence per se claims

Slightly different from Tarasoff claimsSlide87

87

Contesting an Agency Subpoena - Timing

You can ask a court to quash the subpoena when you get it.

You can wait for the agency to go to court to get an order

You can then contest the authority for the subpoena in that proceeding

There should not be a penalty until there is an order, but you want to make sure

The agency may provide their own administrative review of subpoenas

This usually allows negotiating the demand, which is good because you will usually lose in court.Slide88

88

4th Amendment Issues (

Morton Salt

Test)

Is the subpoena sufficiently specific?

Overly broad so it hard to comply with

Is the subpoena unduly burdensome?

Does the agency have a proper purpose?

The court will reject a subpoena that is just for harassment

Morton Salt

is a reasonableness test

Hard to beat an agency subpoena

General deference to agenciesSlide89

Substance

Does the agency have the power to issue the subpoena?

Are there Morton Salt issues?Do you have a duty to contest an illegal subpoena or request for records rather than complying?What should the telcom companies have done about the national security request for phone records?What about Google and other online data and cloud services?

89Slide90

Substantive Challenges to the Reason for the Search

EEOC

seeks records from a law firm on the treatment of partnersFirm does not comply and EEOC goes to courtFirm pleads that the partners are not employees for EEOC purposesCan the court consider this?Does this address Morton Salt factors?What would the court need to know to answer this question?

90Slide91

Fifth Amendment Limits

91Slide92

92

First Party Reporting Issues

What is the purpose of the report?

Is the report targeted at identifying illegal behavior?

Marijuana tax stamps

Gambling reports

Is the report overly burdensome?

At federal level, does the report comply with the paperwork reduction act?Slide93

93

Self-incrimination in Criminal Actions

Only applies if there is a threat of criminal prosecution

It is about testimony, not physical evidence or documents

Only applies to people, not corporations, since corporations do not testify

Blood samples are not 5th Amendment testimony

They are 4th amendment searchesSlide94

94

Invoking

the

Fifth Amendment in Civil Actions

You can claim it in a civil proceeding to avoid producing evidence that could be used in a criminal case

You will lose the civil suit

You can claim it in an administrative proceeding

You will suffer the administrative sanction for not producing the evidence

Evidence may be excluded in a criminal trial if coerced by an administrative sanction like firing or loss of a law license

Prosecutors can give immunity and obviate 5th amendment issues.Slide95

95

Required Records

Assume you must keep wage and hour records

You cheat on the tax withholding, which is a crime

Can you resist producing the records because they will incriminate you?

Shapiro v. United States

, 335 U.S. 1 (1948).

What if you voluntarily created the records?

Even less protectionSlide96

96

Marchetti

v. United States

, 390 U.S. 39 (1968)

The law required gamblers to register and pay an occupational tax

Why?

What about the requirement that owners of illegal sawed off shotguns get a license for them?

The court found that these violated the 5th amendment because they targeted criminal activity

The key is that the law was not requiring a general business record but a specific record of illegal activitySlide97

97

Auto Grave Yard

LA decides to crack down on auto theft and passes a law requiring wrecking yards to record all vin #s and whether they have been altered or defaced.

It is illegal to receive parts with altered vin #s.

Is this a 5th amendment issue?

What can the state do?Slide98

5th

Amendment and Third Party Reporting

Can the third party assert the 5th Amendment on your behalf if you do not have a reasonable expectation of privacy?For example, the Stored Communications Act protects email at your ISP and one court has found an expectation of privacy in email.98