Learning from all fifty States: How to apply the fourth amendment and its State analogs to protect third party information from unreasonable search

Catholic University Law Review

Volumn 55, Issue 2, 2006, Pages 373-425

  Henderson, Stephen E ^a,b  

^a Widener University School of Law   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 49549086416     PISSN: 00088390     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (294)

1. U.S. CONST. amend. IV. The Fourth Amendment provides: 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. Id.
2. See United States v. Miller, 425 U.S. 435, 437 (1976).
3. See Smith v. Maryland, 442 U.S. 735, 745-46 (1979); United States v. Hambrick, No. 99-4793, 2000 U.S. App. LEXIS 18665, at *13-14 (4th Cir. Aug. 3, 2000) (unpublished); United States v. Kennedy, 81 F. Supp. 2d 1103, 1110 (D. Kan. 2000).
4. See California v. Greenwood, 486 U.S. 35, 37 (1988).
5. See United States v. Karo, 468 U.S. 705, 713 (1984); United States v. Knotts, 460 U.S. 276, 285 (1983).
6. See infra Part III.
7. See 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 2.7(b)-(c), at 736, 747 (4th ed. 2004). Wayne LaFave's treatise terms the Court's third-party doctrine "dead wrong" (in the context of bank records) and deems it "a crabbed interpretation" that "makes a mockery of the Fourth Amendment" (in the context of phone records). Id. Other commentators have warned of the significant amounts of information in the hands of third parties. See, e.g., Orin S. Kerr, Digital Evidence and the New Criminal Procedure, 105 COLUM. L. REV. 279, 293-96 (2005); Christopher Slobogin, Subpoenas and Privacy, 54 DEPAUL L. REV. 805, 822-26 (2005);
8. Christopher Slobogin, Transaction Surveillance by the Government, 75 MISS. L.J. (forthcoming 2006);
9. Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. CAL. L. REV. 1083, 1084-85 (2002).
10. For a complete listing of these analogs see infra Appendix.
11. See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489, 491, 496-97, 502-03 (1977).
12. See infra Part V, tbl. 2.
13. The term "new federalism" is commonly used to refer to the post-1970s resurgence in state constitutional analysis. See, e.g., 1 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 2.11(a), at 703 (2d ed. 1999);
14. Shirley S. Abrahamson & Diane S. Gutmann, The New Federalism: State Constitutions and State Courts, 71 JUDICATURE 88, 90 (1987).
15. In 1949, when thirty-one states rejected the exclusionary rule and sixteen had adopted it, the Supreme Court made a careful analysis of state jurisprudence and held that the Due Process Clause of the Fourteenth Amendment did not require suppression of evidence obtained via an unconstitutional search or seizure. Wolf v. Colorado, 338 U.S. 25, 29-31, 33-38 (1949), overruled by Mapp v. Ohio, 367 U.S. 643 (1961). But of those states considering the doctrine between 1949 and 1961, over half adopted some form of exclusionary rule. See Mapp, 367 U.S. at 651. Although the Mapp Court, chided by the dissent, see id. at 680 (Harlan, J., dissenting), lamely asserted that state doctrines were "not basically relevant," it clearly relied in part upon this trend in reversing Wolf and requiring that states exclude such constitutionally tainted evidence, id. at 651 (majority opinion). The Court's motivation for allegedly giving less relevance to state doctrine seems to be that one half of the states still had no exclusionary rule, and that the Court was eager to reverse Wolf. See id. (documenting state positions); id. at 672-77 (Harlan, J., dissenting) (arguing persuasively that the Court rather lawlessly decided an issue not raised, briefed, or argued by the parties).
16. United States v. Watson, 423 U.S. 411, 421-22 (1976).
17. Payton v. New York, 445 U.S. 573, 598-600 (1980). The Court declared warrantless entry unconstitutional despite a majority of states permitting such entry. Id. at 598-601. For an analysis of the Court's reliance on state law in interpreting the Fourth Amendment, see Kathryn R. Urbonya, Fourth Amendment Federalism? The Court's Vacillating Mistrust and Trust of State Search and Seizure Laws, 35 SETON HALL L. REV. 911 (2005).
18. Id. at 600.
19. See United States v. Knights, 534 U.S. 112, 118-19 (2001).
20. The Wolf, Mapp, Watson, and Payton Courts looked not only to state constitutional decisions but also to state legislation. See Payton, 445 U.S. at 598 n.46, 599 nn. 47-48; Watson, 423 U.S. at 419-20; Mapp, 367 U.S. at 652 n.7; Wolf, 338 U.S. at 30 n.1. What state legislatures deem reasonable would indeed seem similarly relevant. In the words of the Payton Court, "when the constitutional standard is as amorphous as the word 'reasonable,' . . . custom and contemporary norms necessarily play . . . a large role in the constitutional analysis." Payton, 445 U.S. at 600. This Article, however, considers only state constitutional law.
21. See infra Part V.
22. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory.").
23. This Article uses "data mining" loosely to refer to extracting any data from an aggregated database. See infra note 105.
24. Of course not all commentators agree. Two excellent "thrust and parry" articles concerning the "reasonableness" versus "warrant requirement" debate are Akhil Reed Amar, Terry and Fourth Amendment First Principles, 72 ST. JOHN'S L. REV. 1097 (1998),
25. and Scott E. Sundby, An Ode to Probable Cause: A Brief Response to Professors Amar and Slobogin, 72 ST. JOHN'S L. REV. 1133 (1998).
26. See also Scott E. Sundby, A Return to Fourth Amendment Basics: Undoing the Mischief of Camara and Terry, 72 MINN. L. REV. 383 (1988).
27. See infra note 131.
28. U.S. CONST. amend. IV.
29. 277 U.S. 438 (1928).
30. Id. at 464-66. For a more complete description of Olmstead and the development of the third-party doctrine see Stephen E. Henderson, Nothing New Under the Sun? A Technologically Rational Doctrine of Fourth Amendment Search, 56 MERCER L. REV. 507, 511-21 (2005).
31. Thus government agents were free to eavesdrop from their side of a party wall. See Goldman v. United States, 316 U.S. 129, 134-36 (1942), overruled by Katz v. United States, 389 U.S. 347 (1967). But if the agents used a microphone which penetrated that wall, even by an inch, the Fourth Amendment would be implicated. See Silverman v. United States, 365 U.S. 505, 506-07, 512 (1961).
32. 389 U.S. 347 (1967).
33. Id. at 351.
34. Id. at 348, 351.
35. U.S. CONST. amend. IV.
36. See Henderson, supra note 25, at 544-46.
37. Katz, 389 U.S. at 361 (Harlan, J., concurring): see also Smith v. Maryland, 442 U.S. 735, 740 (1979).
38. See Smith, 442 U.S. at 740 n.5 (considering the effect of a police announcement that all homes will hereafter be subject to random inspections).
39. See id.; Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978); 1 LAFAVE, supra note 7, § 2.1(c); Anthony Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 384 (1974). At least one state that otherwise adopts Katz as a matter of state constitutional law has therefore explicitly jettisoned the subjective prong. See State v. Hempele, 576 A.2d 793, 801-02 (N.J. 1990).
40. United States v. Miller, 425 U.S. 435, 443 (1976).
41. The documents in Miller were retained by the bank pursuant to the Bank Secrecy Act of 1970, which requires banks to preserve such information precisely because it is of value to government investigations. See id. at 442-43. Today telephone companies are similarly required to retain toll records for eighteen months. See 47 C.F.R. § 42.6 (2005).
42. See Ferguson v. City of Charleston, 532 U.S. 67, 84-86 (2001) (finding urine tests of pregnant mothers to constitute unreasonable searches in view of their law enforcement purpose).
43. See Kyllo v. United States, 533 U.S. 27, 40 (2001) (finding thermal scan of home to constitute unreasonable search in light of the special protection for homes under the Fourth Amendment).
44. Henderson, supra note 25, at 524-28.
45. Compare Berger v. New York, 388 U.S. 41, 63-64 (1967) (protecting the contents of conversations), with Smith, 442 U.S. at 742 (finding no protection for telephone numbers dialed). Another limitation might exist for information that is otherwise constitutionally protected. Medical records might be protected by a Griswold/Whalen/Roe right to privacy, in which case obtaining those records without legal process or justification might not only be an independent constitutional violation, but might also constitute an unreasonable search in violation of the Fourth Amendment. See Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (recognizing a constitutionally protected right of privacy); Whalen v. Roe, 429 U.S. 589, 598 n.23 (1977) (finding that right in the Fourteenth Amendment's "concept of personal liberty"); Roe v. Wade, 410 U.S. 113, 153 (1973) (same); Herring v. Keenan, 218 F.3d 1171, 1175 (10th Cir. 2000) (holding Whalen created a right to privacy in the nondisclosure of medical records); Doe v. Se. Pa. Transp. Auth., 72 F.3d 1133, 1137 (3d Cir. 1995) (same); Anderson v. Romero, 72 F.3d 518, 522 (7th Cir. 1995) (same); Doe v. City of New York, 15 F.3d 264, 267 (2d Cir. 1994) (same); Doe v. Attorney Gen. of the U.S., 941 F.2d 780, 795-96 (9th Cir. 1991) (same); see also Douglas v. Dobbs, 419 F.3d 1097, 1102-03 (10th Cir. 2005) (recognizing potential Fourth Amendment claim based upon release of prescription records); Murphy v. Townsend, 187 F.3d 648, No. C97-0851 JCC, 1999 WL 439468, at *2 (9th Cir. June 22, 1999) (unpublished table decision) (same); State v. Russo, 790 A.2d 1132, 1152 (Conn. 2002) (recognizing right of privacy but finding no Fourth Amendment violation in release upon law enforcement request); King v. State, 577 S.E.2d 764, 767 (Ga. 2003) (finding no violation when records are obtained via search warrant without notice); King v. State, 535 S.E.2d 492, 497 (Ga. 2000) (recognizing right of privacy and finding violation thereof when records are obtained via subpoena without notice); Stone v. City of Stow, 593 N.E.2d 294, 301 (Ohio 1992) (recognizing right of privacy but finding no Fourth Amendment violation in release upon law enforcement request); State v. Welch, 624 A.2d 1105, 1112 (Vt. 1992) (same). But see Jarvis v. Wellman, 52 F.3d 125, 126 (6th Cir. 1995) (holding there is no constitutional right to nondisclosure of medical information). Several cases have split on the right to privacy in blood tests. See Tims v. State, 711 So. 2d 1118, 1122 (Ala. Crim. App. 1997) (finding no reasonable expectation of privacy in hospital blood tests); People v. Perlos, 462 N.W.2d 310, 321 (Mich. 1990) (same); Commonwealth v. Riedel, 651 A.2d 135, 139 (Pa. 1994) (finding reasonable expectation of privacy in hospital blood tests); Sam Kamin, The Private is Public: The Relevance of Private Actors in Defining the Fourth Amendment, 46 B.C. L. REV. 83, 133-36 (2004) (describing the split of authority). To this extent the third-party doctrine may not be absolute, but for purposes of this Article we are not interested in a limitation that will only protect that small category of information that is otherwise constitutionally protected.
46. Arguably, however, the Supreme Court deviated from this principle in finding no protection for garbage provided to garbage collectors. See California v. Greenwood, 486 U.S. 35 (1988). But see Hempele, 576 A.2d at 806 (disagreeing with the federal doctrine).
47. See James A. Martin, Newest Cell Phone Features, PC WORLD, Mar. 24, 2005, http://www.pcworld.com/howto/article/0,aid, 120017,00.asp;
48. Dan Tynan, What's a Cell Phone, Anyway?, PC WORLD, Mar. 23, 2005, http://www.pcworld.com/news/article/0,aid,120149,00.asp (asserting humorously that "[v]oice-only handsets have become as quaint as hand-crank telephones"). There is more to come, including the use of one-time passwords sent to a customer's mobile phone and the ability to pay for goods and services using a Bluetooth-enabled phone. See Martin, supra. Lest one should think proliferation of features is unique to cell phones, however, consider that there are refrigerators that can display television, transmit e-mail, and take photographs.
49. See Nadine Brozan, Greetings From SoFi, N.Y.C., N.Y. TIMES, July 10, 2005, § 11 (Real Estate), at 1 (describing luxury condos that include such a device).
50. Clive Thompson, Remote Possibilities, N.Y. TIMES, Nov. 16, 2003, § 6 (Magazine), at 80.
51. A great deal of information on how mobile phones work is available on the Internet. See, e.g., Julia Layton et al., How Cell Phones Work, http://electronics.howstuffworks.com/cell-phone.htm (last visited Feb. 20, 2006). A nice description is also contained in In re Application for Pen Register and Trap/Trace, 396 F. Supp. 2d 747, 750-51 (S.D. Tex. 2005).
52. Application for Pen Register & Trap/Trace, 396 F. Supp. 2d at 750;
53. Kathryn Balint, Track Down, SAN DIEGO UNION-TRIB., July 22, 2002, at El. Phones scan at least every seven seconds. Application for Pen Register & Trap/Trace, 396 F. Supp. 2d at 750.
54. See 911 Calls: More Trouble Ahead?, CONSUMER REP., Feb. 2004, at 25, 25. If the customer is in a location such that the phone's signal is not received by any tower, there is of course no service and the phone might as well be turned off. For brief explanations of several methods of determining location see 911dispatch.com, Angle of Arrival Location Determination, http://www.911dispatch.com/911/aoa.html (last visited Feb. 20, 2006).
55. Balint, supra note 45. For location tracking aimed at protective pet-owners and parents, see Wherify, Potential Applications & Services, http://www.wherifywireless.com/html/solutions.asp?pageId=47 (last visited Feb. 28, 2006). But even those willing to be tracked for one purpose (e.g., for the safety of a child or peace of mind of a spouse) likely do not want that information generally available to the government.
56. Matt Richtel, Enlisting Cellphone Signals To Fight Road Gridlock, N.Y. TIMES, Nov. 11, 2005, at C1.
57. Robert Davis, New Tools Will Make Crash Victims Easier To Find, USA TODAY, Mar. 7, 2001, at 8D;
58. Carolyn Said & Carrie Kirby, GPS Cell Phones May Cost Privacy, S.F. CHRON., Mar. 19, 2001, at C4.
59. Davis, supra note 49; Said & Kirby, supra note 49. Rescuers later found tire tracks twelve miles from where Gutierrez had thought she was located. Davis, supra note 49. Had the service provider been contacted and had sufficient time, it could have determined her approximate location using the tracking inherent in cell phone telephony. Such tracking has been used to rescue lost hikers. See Balint, supra note 45.
60. 47 C.F.R. § 20.18(d)-(m) (2005).
61. Id. § 20.18(d).
62. Id. § 20.18(d)(1), (e), (h). To be more precise, providers utilizing handset-based location technology (e.g., a GPS-equipped phone) must be able to locate sixty-seven percent of 911 callers within fifty meters and ninety-five percent of callers within 150 meters. Id. § 20.18(h)(2). As of February 2004, Verizon, Sprint, and Nextel offered handset-based technology. 911 Calls: More Trouble Ahead?, supra note 46, at 25. Providers instead utilizing network-based technology (e.g., triangulating position by calculating signal strength and timing at multiple towers) must be able to locate sixty-seven percent of callers within 100 meters and ninety-five percent of callers within 300 meters. 47 C.F.R. § 20.18(h)(1). As of February 2004, AT&T, Cingular, and T-Mobile were using network-based technology. 911 Calls: More Trouble Ahead?, supra note 46, at 25. While providers have been able to phase-in this capability over time, unfortunately neither technology works under all circumstances. See 47 C.F.R. § 20.18(f); 911 Calls: More Trouble Ahead?, supra note 46, at 26.
63. See Michael K. Kurtis, Deploying E-911 Phase II in Rural America, RURAL TELECOMM., Jan. 1, 2004, at 44, 44;
64. 911 Calls: More Trouble Ahead?, supra note 46, at 25.
65. One court has referred to this as an "inexorable combination of market and regulatory stimuli." In re Application for Pen Register and Trap/Trace, 396 F. Supp. 2d 747, 755 (S.D. Tex. 2005). Were the government's E911 requirements the sole reason cell phone providers sought and obtained location information, the Fourth Amendment might restrict government access. Although the Supreme Court has held that one retains no reasonable expectation of privacy in information retained by a third party solely to satisfy government requirements, see discussion of Miller supra Part II, the result should be different if the government is solely responsible for their obtaining that information, see Ferguson v. City of Charleston, 532 U.S. 67, 90 (2001) (Kennedy, J., concurring) (distinguishing mandatory reporting of information that would already be obtained from the government requiring that a private party obtain information). Because location information is of significant commercial value, the E911 requirements are unlikely to remain a motivating factor.
66. Balint, supra note 45.
67. Id.
68. Id.
69. Yardena Arar, Mapping Mania at CTIA, PC WORLD, Mar. 15, 2005, http://www.pcworld.com/news/article/0,aid,120057,00.asp.
70. Id. GPS stands for Global Positioning System, a set of twenty-seven satellites (twenty-four active and three alternates) and corresponding ground stations that enable a portable receiver "visible" to three satellites to determine the receiver's location (latitude and longitude). See Marshall Brain & Tom Harris, How GPS Receivers Work, http://electronics.howstuffworks.com/gps.htm (last visited Feb. 20, 2006);
71. Webopedia.com, GPS, http://www.webopedia.eom/TERM/G/GPS.html (last visited Feb. 20, 2006). With a fourth satellite altitude can also be computed. See Webopedia.com, supra. Brain and Harris include a very nice explanation of how the satellites enable computation of location. See Brain & Harris, supra.
72. See MapQuest Find Me Frequently Asked Questions, http://findme.mapquest.com/includes/faq.jsp (last visited Feb. 20, 2006). A more annoying implementation would allow nearby businesses to send unsolicited advertisements. See Said & Kirby, supra note 49.
73. Tynan, supra note 42; MapQuest Find Me Frequently Asked Questions, supra note 61 (citing a range of 5 to 100 meters). A phone that is not GPS-enabled can be used for such services if it is Bluetooth-enabled, allowing it to communicate with an independent Bluetooth GPS module. See Grace Aquino, Phones Use GPS To Show You the Way, PC WORLD, Aug. 2005, http://www.pcworld.com/news/article/0,aid,121417,00.asp. The United Arab Emirates is investing in similar GPS technology that will allow the government to track the location, and hence the speed, of all equipped vehicles driving within the country.
74. See The Policeman on Your Dashboard, ECONOMIST (TECH. Q.), Sept. 17, 2005, at 12, 12. The technology is expected to be ready for installation within four years. Id.
75. See MapQuest Find Me, http://findme.mapquest.com (follow "Watch a Demo" hyperlink) (last visited Feb. 20, 2006).
76. If knowing that many drivers are chatting on their cell phones does not contribute to your "peace of mind," see Steve Chapman, No Simple Way To End the Threat Posed by Drivers with Cell Phones, BALT. SUN, July 20, 2005, at 13A (noting British Medical Journal study finding drivers using phones are four times more likely to get into serious crashes), you probably won't like to learn that now drivers can also peruse maps of potential traffic problems sent to their phone, see MapQuest Traffic, http://www.mapquest.com/features/main.adp?page= slashmobile_traffic (last visited Feb. 20, 2006).
77. There are, however, automated implementations that might not distract drivers. See Henry J. Holcomb, Will Smart Phones and GPS Accelerate Commuters Toward . . . Rush Hour's End?, PHILA. INQUIRER, July 24, 2005, at E1.
78. It is quite possible the Supreme Court would deem customer location to be knowingly shared regardless of whether a customer subscribes to such a service. Because such precise location information is not otherwise necessary to provide the requested (telephone) service, however, it could also be a crucial distinction to a court accepting a more limited third-party doctrine. See supra Part II. Moreover use of such a service is optional as opposed to government mandated. See supra note 55.
79. Tynan, supra note 42. Allied Business Intelligence estimates a $40 billion market by 2007. Id.; see also Allied Business Intelligence Home Page, http://www.abiresearch.com (last visited Feb. 22, 2006). For descriptions of several existing services see Grace Aquino, GPS Cell Phones, PC WORLD, Mar. 22, 2004, http://www.pcworld.com/reviews/ article/0,aid,115273,00.asp, Aquino, supra note 62, and Arar, supra note 59.
80. There are statutory restrictions on marketing personally identifiable location information. See 47 U.S.C. § 222(c), (h)(1) (2000).
81. Balint, supra note 45. Mitnick has the dubious distinction of being the only hacker to make the FBI's most-wanted list. See Hacker Gets Prison Term, N.Y. TIMES, Aug. 10, 1999, at A15;
82. Rene Sanchez, Hacker Goes Underground, CONTRA COSTA TIMES, Dec. 11, 1998, at B11. He is, naturally, now making money as a security consultant.
83. See Mitnick Security Consulting, LLC Home Page, http://www.mitnicksecurity.com (last visited Feb. 20, 2006).
84. For other examples of police catching crooks via cell phone location tracking see Recent Development, Who Knows Where You've Been? Privacy Concerns Regarding the Use of Cellular Phones as Personal Locators, 18 HARV. J.L. & TECH. 307, 310-11 (2004).
85. Laura Maggi, Last 2 of 5 Killings Are Linked to Lee, NEW ORLEANS TIMES-PICAYUNE, Oct. 11, 2004, at A1;
86. Keith O'Brien, Lee is Found Guilty in Second Murder, NEW ORLEANS TIMES-PICAYUNE, Oct. 13, 2004, at A1. The evidence is an example of the location tracking inherent in cell phone telephony: the defendant's calls were transmitted via a cell tower in that location. Id.
87. Diana Walsh & Stacy Finz, The Peterson Trial: Defendant Lied Often, Recorded Calls Show, Supporters Mislead About Whereabouts, S.F. CHRON., Aug. 26, 2004, at B1.
88. See supra note 36.
89. 18 U.S.C. § 2703(f) (2000) (providing for record retention for a renewable ninety-day period).
90. See Declan McCullagh, Your ISP as Net Watchdog, CNET NEWS.COM, June 16, 2005, http://news.com.com/2102-1028_3- 5748649.html (claiming the Department of Justice (DOJ) is shopping the idea of requiring that ISPs retain records of customer online activity). Even apart from privacy concerns is a practical concern, however. If significant data is retained for every user, the data would not only be expensive to retain but would be too large to search with existing technology. Id.
91. One article reports that the FBI began pressuring carriers to maintain such records as early as 2001. See Said & Kirby, supra note 49.
92. See Press Release, U.S. Census Bureau, U.S. Census Bureau Daily Feature for June 15: Cell Phones (June 15, 2005), http://press.arrivenet.com/ politics/article.php/668485.html;
93. CTIA - The Wireless Association, Background on CTIA's Semi-Annual Wireless Industry Survey, http://www.ctia.org/research_statistics/index.cfm/AID/ 10030 (last visited Feb. 20, 2006) (estimating over 182 million subscribers at the end of 2004).
94. Google now provides both mapping and satellite photographs gratis via Google Maps. See Google Maps, http://www.maps.google.com (last visited Feb. 20, 2006). If you have yet to peruse satellite images of your home, favorite bookstore, and general vicinity, it is worth doing.
95. For an even more impressive experience, see Google Earth, http://earth.google.com (last visited Feb. 20, 2006). Cell phones are not the only manner in which we disclose our location.
96. For example, some travel in GPS-equipped vehicles, see OnStar Home Page, http://www.onstar.com (last visited Feb. 20, 2006),
97. and others take advantage of electronic toll collection systems, see E-ZPass Home Page, http://www.ezpass.com (last visited Feb. 20, 2006).
98. The Fourth Amendment places no restriction on private actors. See United States v. Jacobsen, 466 U.S. 109, 113 (1984) ("This Court has . . . consistently construed [the Fourth Amendment] protection as proscribing only governmental action; it is wholly inapplicable 'to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.'" (quoting Walter v. United States, 447 U.S. 649, 662 (1980) (Blackmun, J., dissenting))). Other than a short-lived jurisprudence in Montana that excluded evidence obtained via invasive private searches, see State v. Hyem, 630 P.2d 202, 206-07, 210 (Mont. 1981), overruled by State v. Long, 700 P.2d 153 (Mont. 1985), the author is not aware of any state that has ever deviated from the Fourth Amendment in this regard. Although this is unfortunate from the perspective of meaningfully protecting privacy in the modern world, it is perhaps sensible as the exclusion of evidence from a trial is unlikely to have any effect on would-be private searchers. Even if such searches were amenable to civil suit based on a "violation," private parties are less likely to know this jurisprudence than police. If so, exclusion of evidence would prevent convictions but would not protect privacy. Private action can of course be made explicitly criminal or tortious, and such liability is important today when so much information is in the hands of, or available to, third parties.
99. See, e.g., 18 U.S.C. § 2702 (2000 & Supp. 2002) (restricting voluntary disclosure of information by an entity providing the public an electronic communications service (e.g., e-mail)), amended by 18 U.S.C.A. § 2702 (West Supp. 2005).
100. The recipient of information could have a reasonable expectation of privacy in that information (e.g. the recipient of a personal letter), but likely not when the information is routine business data. Moreover, a service provider has no interest in asserting any such legal interest.
101. Because Congress has never addressed this matter directly, the analysis requires a Herculean attempt to interpret the interstices of at least three complicated statutes, the Wiretap Act (or "Title III"), 18 U.S.C. §§ 2510-2522, the Stored Communications Act, 18 U.S.C. §§ 2701-2712, and the Pen Trap Statute, 18 U.S.C. §§ 3121-3127. There is also 18 U.S.C. § 3117(a), which concerns orders for "mobile tracking device[s]," and a potentially critical provision of the Communications Assistance for Law Enforcement Act, 47 U.S.C. § 1002. Given the complexity of the analysis there is no clear winner, but the Southern District of New York provides an impressive textualist analysis that ably presents the issues. See In re Application for an Order for Disclosure, 405 F. Supp. 2d 435, 437-49 (S.D.N.Y. 2005).
102. See Application for an Order for Disclosure, 405 F. Supp. 2d 435; In re Application for Order of a Pen Register, 402 F. Supp. 2d 597 (D. Md. 2005); In re Application of the U.S. for an Order, 396 F. Supp. 2d 294 (E.D.N.Y. 2005); In re Application for Pen Register & Trap/Trace, 396 F. Supp. 2d 747 (S.D. Tex. 2005).
103. The courts in the Southern District of Texas, the Eastern District of New York, and the District of Maryland held that as a statutory matter a court could not authorize the acquisition of cell phone location information absent a warrant supported by probable cause. See Application for Order of a Pen Register, 402 F. Supp. 2d at 598; Application of the U.S. for an Order, 396 F. Supp. 2d at 295; Application for Pen Register & Trap/Trace, 396 F. Supp. 2d at 765. The court in the Southern District of New York permitted acquisition via a more lenient court order provision of the Stored Communications Act. See Application for an Order for Disclosure, 405 F. Supp. 2d, at 449-50.
104. Application for an Order for Disclosure, 405 F. Supp. 2d, at 449.
105. Id. at 436-37.
106. Id. at 449.
107. See Application for Order of a Pen Register, 402 F. Supp. 2d at 605 n.12; Application of the U.S. for an Order, 396 F. Supp. 2d at 323-24; Application for Pen Register & Trap/Trace, 396 F. Supp. 2d at 757.
108. 335 F.3d 942 (6th Cir. 2004), vacated and remanded on other grounds sub nom. Garner v. United States, 125 S. Ct. 1050 (2005).
109. Id. at 951-52.
110. Id. at 947-48.
111. Id. at 951. The Supreme Court has been inconsistent in articulating whether the manner or means of obtaining information is relevant if that information could be obtained constitutionally. See Kyllo v. United States, 533 U.S. 27, 35 n.2 (2001) (implying manner is determinative where viewing snow melt is permissible but thermal imaging is not, and expressly stating that "[t]he fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment"); Florida v. Riley, 488 U.S. 445, 451 (1989) (plurality opinion) (implying manner is determinative where helicopter surveillance is permissible at 400 feet but airplane surveillance would not be); Oliver v. United States, 466 U.S. 170, 179 (1984) (implying manner is not determinative where ground-based intrusion into open fields is permissible because same information could be obtained via flyover); Katz v. United States, 389 U.S. 347, 352 (1967) (implying manner is determinative where lip reader could potentially have obtained same information through phone booth glass).
112. Application for Order of a Pen Register, 402 F. Supp. 2d at 598.
113. Id. at 605 n.12.
114. Id. Perhaps it is difficult not to beg the question when opining on what is "reasonable."
115. In re Application of the U.S. for an Order, 396 F. Supp. 2d 294, 295 (E.D.N.Y. 2005); In re Application for Pen Register & Trap/Trace, 396 F. Supp. 2d 747, 748-49 (S.D. Tex. 2005).
116. Application of the U.S. for an Order, 396 F. Supp. 2d at 322-23.
117. Application for Pen Register & Trap/Trace, 396 F. Supp. 2d at 757.
118. Id.
119. See California v. Greenwood, 486 U.S. 35, 52 (1988) (Brennan, J., dissenting).
120. See United States v. Miller, 425 U.S. 435, 443 (1976).
121. See Oliver v. United States, 466 U.S. 170, 183-84 (1984); id. at 190-91 (Marshall, J., dissenting).
122. One enterprising author has written a book chronicling her daily activities based on more than a decade of credit card statements. The book, by Amy Borkowsky, is entitled Statements: True Tales of Life, Love, and Credit Card Bills.
123. See Susanna Schrobsdorff, Of Love and Money, NEWSWEEK, Aug. 10, 2005, http://www.msnbc.msn.com/id/8890396/site/ newsweek.
124. John Markoff, Pentagon Plans a Computer System that Would Peek at Personal Data of Americans, N.Y. TIMES, Nov. 9, 2002, at A12;
125. John Markoff & John Schwartz, Many Tools of Big Brother Are Now Up and Running, N.Y. TIMES, Dec. 23, 2002, at C1;
126. Robert O'Harrow, Jr., U.S. Hopes To Check Computers Globally, WASH. POST, Nov. 12, 2002, at A4.
127. Carl Hulse, Congress Shuts Pentagon Unit Over Privacy, N.Y. TIMES, Sept. 26, 2003, at A20.
128. U.S. GEN. ACCOUNTING OFFICE, GAO-04-548, DATA MINING: FEDERAL EFFORTS COVER A WIDE RANGE OF USES (2004), available at http://www.gao.gov/new.items/d04548.pdf;
129. Audrey Hudson, Government's Pursuit of Personal Data Lives On, WASH. TIMES, Mar. 1, 2004, at A1;
130. Eric Lichtblau, Behind-the-Scenes Battle on Tracking Data Mining, N.Y. TIMES, July 24, 2005, at A16;
131. Sampling Finds Federal Data Mining Fails To Assure Privacy Protections, SAN JOSE MERCURY NEWS, Aug. 29, 2005, 2005 WLNR 13583359.
132. See John Schwartz, Privacy Fears Erode Support For a Network To Fight Crime, N.Y. TIMES, Mar. 15, 2004, at C1.
133. Id.; Heather Timmons, Security Breach at LexisNexis Now Appears Larger, N.Y. TIMES, Apr. 13, 2005, at C7;
134. see also LexisNexis Home Page, http://www.lexisnexis.com (last visited Feb. 22, 2006);
135. Seisint Home Page, http://www.seisint.com (last visited Feb. 22, 2006). Data mining, also known as knowledge discovery in databases, is technically the extraction of previously unknown information from existing data, but the term is often used to refer to products that merely present existing data in a useable form.
136. See Webopedia.com, Data Mining, http://www.webopedia.com/TERM/d/ data_mining.html (last visited Feb. 20, 2006). For reasons of readability this Article sometimes uses this common, though technically incorrect, usage.
137. See Schwartz, supra note 104. The program was also designed to identify potential terrorists based on that data, but is currently not being used in that manner. Database Tagged 120,000 as Possible Terrorist Suspects, N.Y. TIMES, May 21, 2004, at A16.
138. See Tom Zeller Jr., U.P.S. Loses a Shipment of Citigroup Client Data, N.Y. TIMES, June 7, 2005 at C1 [hereinafter Zeller, U.P.S. Loses Shipment]. Several highly publicized data breaches at such aggregators and banks have spurred congressional hearings that may lead to further regulation of this industry.
139. See Tom Zeller Jr., Investigators Argue for Access to Private Data, N.Y. TIMES, Mar. 21, 2005, at C1.
140. Choice Point Home Page, http://www.choicepoint.com (last visited Feb. 20, 2006).
141. Tom Zeller Jr., How Billions of Pieces of Information are Bought and Sold, N.Y. TIMES, Mar. 17, 2005, at C8;
142. Zeller, U.P.S. Loses Shipment, supra note 107.
143. MyPublicInfo Home Page, http://www.mypublicinfo.com (follow "Learn More" hyperlink) (last visited Feb. 20, 2006);
144. see also Identity Theft: A PIP of Progress, ECONOMIST, July 16, 2005, at 59, 59.
145. MyPublicInfo Home Page, supra note 110. Although MyPublicInfo naturally encourages the purchase of one's $79.95 PIP with customer testimonials, the author's admirably lengthy 210-page PIP was even more boring than his actual life-there was no "felony on my records," "early id theft" was not "nipped in the bud," and I am not "forever indebted to [their] service." See MyPublicInfo Home Page, PIP Testimonials, http://www.mypublicinfo.com (last visited Feb. 20, 2006). Of course this is, like not having a cavity, a good thing. It is also worth noting that companies providing an extensive range of services, such as Google, themselves gather an enormous amount of disparate data. See Anick Jesdanun, As Google Grows, So Does Privacy Fear, CONTRA COSTA TIMES, July 20, 2005, at F4.
146. For an interesting article describing what a group of graduate students were able to aggregate for just fifty dollars, see Tom Zeller Jr., Personal Data for the Taking, N.Y. TIMES, May 18, 2005, at C1.
147. State v. 1993 Chevrolet Pickup, 2005 MT 180, ¶¶ 31, 33, 35, 328 Mont. 10, ¶¶ 31, 33, 35, 116 P.3d 800, ¶¶ 31, 33, 35 (Nelson, J., concurring). This case is described in more detail in Part VI of this Article.
148. See infra Appendix. Although it can be instructive to compare the texts of the various provisions, it is not worth breaking up the flow of the Article to accommodate the lengthy list, and the individual explanatory footnotes are themselves already rather lengthy.
149. See 1 LAFAVE ET AL., supra note 11, § 2.11(a).
150. Although the references for each state vary according to what caselaw is available, the author looked for state responses to, inter alia, Smith v. Maryland, 442 U.S. 735 (1979) (finding no reasonable expectation of privacy (REP) in telephone numbers dialed); United States v. Miller, 425 U.S. 435 (1976) (finding no REP in bank records); California v. Greenwood, 486 U.S. 35 (1988) (finding no REP in garbage left for collection); United States v. Knotts, 460 U.S. 276 (1983) (finding no REP in vehicle location); and United States v. Place, 462 U.S. 696 (1983) (holding that a canine sniff is not a search).
151. A number of factors might contribute to this lack of caselaw. First, defense counsel might do an inadequate job of independently arguing the state constitutional ground. Although ideally this would not happen, arguing state grounds can be a substantial task. See, e.g.. State v. Johnson, 909 P.2d 293, 301 (Wash. 1996) (potentially requiring briefing on six complex factors); State v. Jackson, 76 P.3d 217, 222 (Wash. 2003) (no longer requiring such briefing once it became "settled" that the state analog is more protective). Second, some states have traditionally interpreted their state analog in lockstep with the Fourth Amendment with little to no analysis, leaving one to search in vain for independent analysis or even a statement that the state constitution will be interpreted in conformity with the Fourth Amendment. Third, some issues might not arise as constitutional issues either because the state strictly governs the relevant conduct by statute, because the police consistently utilize a protective procedure as a matter of custom or good policy, or because the police simply have not used a given method of investigation (or at least have not relied upon it at trial).
152. This category includes states that diverge only as to remedy. See infra note 150.
153. California has adopted Katz's REP criterion, see People v. Chapman, 679 P.2d 62, 66 (Cal. 1984), but was a leader in rejecting the federal third-party doctrine. The pre-Miller decision of Burrows v. Superior Court, 529 P.2d 590, 593 (Cal. 1974) (holding one retains a REP in bank records), was adopted by Justice Brennan in dissent in Miller and continues to be one of the most persuasive opinions in jurisdictions deciding to reject Miller. See Miller, 425 U.S. at 447-48 (Brennan, J., dissenting). California likewise diverges by finding a REP in telephone numbers dialed and garbage left for collection. See People v. Blair, 602 P.2d 738, 746 (Cal. 1979) (en banc) (telephone); People v. Krivda, 486 P.2d 1262, 1268 (Cal. 1971) (en banc) (garbage), vacated, 409 U.S. 33 (1972); People v. Edwards, 458 P.2d 713, 718 (Cal. 1969) (en banc) (garbage); People v. Larkin, 239 Cal. Rptr. 760, 761-62 (Ct. App. 1987) (telephone). A 1982 constitutional amendment eliminated suppression of evidence as a remedy for state constitutional violations. See CAL. CONST. art. I, § 28(d). Thus evidence will not be suppressed unless mandated by the Federal Fourth Amendment. See People v. Lance, 694 P.2d 744, 749 (Cal. 1985) (en banc). The amendment did not, however, alter substantive California constitutional law, and civil remedies are available for violations thereof. Id. at 755-56; CAL. CIV. CODE § 52.1 (West Supp. 2005).
154. Colorado has adopted Katz's REP criterion, Charnes v. DiGiacomo, 612 P.2d 1117, 1120 (Colo. 1980) (en banc); People v. Dunkin, 888 P.2d 305, 307 (Colo. Ct. App. 1994), but rejects the federal third-party doctrine as it applies to electronic tracking, People v. Oates, 698 P.2d 811, 815-18 (Colo. 1985) (en banc), telephone numbers dialed and toll records, People v. Timmons, 690 P.2d 213, 215 (Colo. 1984) (en banc); People v. Corr, 682 P.2d 20, 26-27 (Colo. 1984) (en banc); People v. Sporleder, 666 P.2d 135, 144 (Colo. 1983) (en banc), and bank records, People v. Lamb, 732 P.2d 1216, 1220-21 (Colo. 1987) (en banc); Benson v. People, 703 P.2d 1274, 1278 (Colo. 1985); Charnes, 612 P.2d at 1121. The court agrees, however, that one retains no REP in garbage left for collection because, unlike telephone and bank records, people know members of the public might snoop in their garbage. People v. Hillman, 834 P.2d 1271, 1276-77 (Colo. 1992) (en banc). There is also no protection for power consumption records because they do not reveal any discrete information about, or intimate details of, a customer's activities. Dunkin, 888 P.2d at 308. Unlike the federal doctrine, a canine sniff of objects is sometimes a search requiring reasonable suspicion. See People v. Ortega, 34 P.3d 986, 991 (Colo. 2001) (en banc) (discussing sniff of luggage); People v. May, 886 P.2d 280, 282 (Colo. 1994) (holding sniff of mail requires reasonable suspicion); People v. Boylan, 854 P.2d 807, 812 (Colo. 1993) (en banc) (same); People v. Wieser, 796 P.2d 982, 985 (Colo. 1990) (en banc) (holding sniff of exterior of storage locker from public walkway does not constitute a search); People v. Unruh, 713 P.2d 370, 377-79 (Colo. 1986) (en banc) (holding sniff of safe taken from home by burglar requires reasonable suspicion). Thus in Colorado one retains a REP in bodily information not discernable by ordinary human senses. See People v. Santistevan, 715 P.2d 792, 794-95 (Colo. 1986) (en banc) (subjecting hands to an ultraviolet lamp constitutes a search). Despite the many positive developments in Colorado there is one bit of troubling dicta: Given the rapid advances in computer and telecommunications technology, a person's reasonable expectations of privacy in telephone and bank records may have changed since we decided Sporleder and DiGiacomo, so that the decisions may be subject to challenge. However, in the narrow context of this case, that question is not properly before the court. People v. Mason, 989 P.2d 757, 759 n.2 (Colo. 1999).
155. Historically Florida interpreted its state analog to provide greater protection than the Federal Fourth Amendment, but a 1982 constitutional amendment requires that the state provision "shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court." FLA. CONST. art. I, § 12. However, via a prior 1980 amendment, Floridians have an explicit constitutional right of privacy, id. § 23, and the courts have used this provision to recognize and protect an expectation of privacy in bank and telephone records, Shaktman v. State, 553 So. 2d 148, 151-52 (Fla. 1989) (recognizing a REP in telephone numbers dialed and requiring reasonable suspicion for installation of a pen register); Winfield v. Div. of Pari-Mutuel Wagering, 477 So. 2d 544, 548 (Fla. 1985) (recognizing a REP in bank records but allowing access via subpoena without notice). The Florida jurisprudence is certainly not a model of clarity, however. Courts sometimes imply that the privacy amendment should be "trumped" where the later-in-time conformity amendment is applicable, State v. Hume, 512 So. 2d 185, 187-88 (Fla. 1987); Limbaugh v. State, 887 So. 2d 387, 391-93 (Fla. Dist. Ct. App. 2004), review denied, 903 So. 2d 189 (Fla. 2005), and the state supreme court has given short shrift to the relationship between the sections, Shaktman, 553 So. 2d at 151 n.8; see also Thomas C. Marks, Jr., Now You See It, Now You Don't, Privacy and Search and Seizure in the Florida Constitution: Trying To Make Sense Out of a Tangled Mess, 67 ALB. L. REV. 691, 692 (2004). In several instances the appellate courts have followed the conformity amendment without considering whether the privacy provision would grant greater protection. See State v. Rabb, No. 4D02-5139, 2005 WL 2218980, at *3 (Fla. Dist. Ct. App. Sept. 14, 2005) (canine sniff); State v. Fisher, 591 So. 2d 1049, 1050 (Fla. Dist. Ct. App. 1991) (garbage left for collection); Johnson v. State, 492 So. 2d 693, 693 (Fla. Dist. Ct. App. 1986) (electronic tracking); Stone v. State, 402 So. 2d 1330, 1333 (Fla. Dist. Ct. App. 1981) (garbage left for collection).
156. Hawaii has adopted Katz's REP criterion, State v. Tau'a, 49 P.3d 1227, 1237 (Haw. 2002), but has diverged from the federal doctrine by finding a REP in telephone numbers dialed, State v. Rothman, 779 P.2d 1, 7-8 (Haw. 1989). The opinion contains little analysis, however, and a year later the same court found no REP in bank records without even mentioning this divergence. State v. Klattenhoff, 801 P.2d 548, 552 (Haw. 1990). Neither opinion cites State v. Tanaka, 701 P.2d 1274, 1276 (Haw. 1985), an earlier decision finding a REP in garbage left for collection. Hawaii's jurisprudence regarding canine sniffs is also rather unique, holding that canine sniffs generally are not searches for purposes of the Hawaii Constitution but nonetheless requiring they satisfy a reasonableness balance. State v. Snitkin, 681 P.2d 980, 983-84 (Haw. 1984); State v. Groves, 649 P.2d 366, 371-73 (Haw. 1982). Despite this lack of clarity, the court has at times used strong language to advocate privacy: Our willingness to afford greater protection of individual privacy rights than is provided on the federal level arises from "our view [that] the right to be free of 'unreasonable' searches and seizures under article I, section 5 of the Hawai[']i Constitution is enforceable by a rule of reason which requires that governmental intrusions into the personal privacy of citizens of this State be no greater in intensity than absolutely necessary." State v. Lopez, 896 P.2d 889, 901-02 (Haw. 1995) (alteration in original) (footnote omitted) (quoting State v. Kaluna, 520 P.2d 51, 58-59 (Haw. 1974)) (rejecting federal doctrine of apparent authority).
157. Idaho has adopted Katz's REP criterion, but has diverged from federal doctrine by finding a REP in telephone numbers dialed. State v. Thompson, 760 P.2d 1162, 1163-65 (Idaho 1988). However, Idaho provides no protection for garbage left for collection. State v. McCall, 26 P.3d 1222, 1224 (Idaho 2001); State v. Donato, 20 P.3d 5, 10 (Idaho 2001). The state does not appear to have decided whether a customer retains a REP in bank records. See State v. Patterson, 87 P.3d 967, 973 (Idaho Ct. App. 2003) (assuming there is a REP based on party stipulation). In the course of denying protection for power consumption records, however, an appellate court tipped its hand by noting that such records, "unlike telephone or bank records, do not reveal discrete information about [the defendant's] activities." State v. Kluss, 867 P.2d 247, 254 (Idaho Ct. App. 1993).
158. Illinois has adopted Katz's REP criterion, but diverges from federal doctrine by finding a REP in telephone and bank records. People v. DeLaire, 610 N.E.2d 1277, 1282 (Ill. App. Ct. 1993) (telephone records); People v. Jackson, 452 N.E.2d 85, 88-89 (Ill. App. Ct. 1983) (bank records). However, there is no REP in garbage left for collection. People v. Stage, 785 N.E.2d 550, 552 (Ill. App. Ct. 2003). In 2000 an appellate court held that a canine sniff was a search requiring reasonable suspicion under the Illinois Constitution, but the Supreme Court affirmed on other grounds. People v. Cox, 739 N.E.2d 1066, 1073 (Ill. App. Ct. 2000), affd, 782 N.E.2d 275 (Ill. 2002). In 2003 the Supreme Court of Illinois did consider a canine sniff, holding that a sniff of the exterior of a vehicle during a routine traffic stop violates the Fourth Amendment. See People v. Caballes, 802 N.E.2d 202, 203, 205 (Ill. 2003), vacated, 125 S. Ct. 834 (2005). Given that the United States Supreme Court has vacated this holding via Illinois v. Caballes, 125 S. Ct. 834, 838 (2005), perhaps the Illinois courts will take this opportunity to decide the issue under the state constitution.
159. Montana has adopted Katz's REP criterion, State v. Scheetz, 950 P.2d 722, 724-25 (Mont. 1997), and agrees with federal doctrine that one has no REP in telephone numbers dialed, Hastetter v. Behan, 639 P.2d 510, 511-12 (Mont. 1982). The state diverges, however, with respect to information deemed more private, such as medical records, State v. Nelson, 941 P.2d 441, 448-50 (Mont. 1997) (medical records), and employment records, Missoulian v. Bd. of Regents of Higher Educ., 675 P.2d 962, 970 (Mont. 1984) (employment records); Mont. Human Rights Div. v. City of Billings, 649 P.2d 1283, 1287-88 (Mont. 1982) (same). Moreover, in Montana the state analog restricts police even when there is no REP. Thus although a Montanan retains no REP in garbage left for collection, police still must have reasonable suspicion before they can search such garbage. State v. 1993 Chevrolet Pickup, 2005 MT 180, ¶¶ 18-19, 328 Mont. 10, ¶¶ 18-19, 116 P.3d 800, ¶¶ 18-19. A canine sniff of checked luggage is not a search under the state analog, but a sniff of a vehicle exterior or of any other container still in a suspect's control is permissible only if supported by reasonable suspicion. State v. Tackitt, 2003 MT 81, ¶ 31, 315 Mont. 59, ¶ 31, 67 P.3d 295, ¶ 31 (vehicle exterior); Scheetz, 950 P.2d at 727 (checked luggage). Swabbing a hand to obtain a blood sample is a search for purposes of the Montana Constitution, and the state high court has implied that shining an ultraviolet light on a hand is likewise a search. See State v. Hardaway, 2001 MT 252, ¶¶ 22-23, 307 Mont. 139, ¶¶ 22-23, 36 P.3d 900, ¶¶ 22-23.
160. New Jersey has adopted a modified version of Katz's REP criterion, State v. Hempele, 576 A.2d 793, 801-02 (N.J. 1990), but diverges from federal doctrine by finding a REP in telephone numbers dialed, see State v. Mollica, 554 A.2d 1315, 1322 (N.J. 1989) (telephone numbers dialed from motel room); State v. Hunt, 450 A.2d 952, 955-56 (N.J. 1982) (telephone numbers dialed), bank records, see State v. McAllister, 875 A.2d 866, 875 (N.J. 2005) (bank records), and garbage left for collection, see Hempele, 576 A.2d at 810 (garbage). Hempele is an articulate and well-reasoned opinion that has become the standard for those states diverging from the federal rule for garbage. A New Jersey appellate court recently held that a utility customer has a REP in power consumption records. State v. Domicz, 873 A.2d 630, 644 (N.J. Super. Ct. App. Div. 2005). The opinion in Domicz provides a nice summary of New Jersey's relatively frequent departures from the Fourth Amendment. Id. at 642-43. An appellate court has also, however, agreed with federal doctrine that a canine sniff of luggage does not constitute a search. See State v. Cancel, 607 A.2d 199, 203 (N.J. Super. Ct. App. Div. 1992).
161. Pennsylvania has adopted Katz's REP criterion, Commonwealth v. Rekasie, 778 A.2d 624, 628-29 (Pa. 2001), but diverges from federal doctrine by finding a REP in telephone numbers dialed and bank records, Commonwealth v. Melilli, 555 A.2d 1254, 1258-59 (Pa. 1989) (telephone numbers); Commonwealth v. DeJohn, 403 A.2d 1283, 1291 (Pa. 1979) (bank records); see also Rekasie, 778 A.2d at 629-30 (explaining this divergence). According to the Pennsylvania supreme court a bank customer does not, however, have a REP in his or her name and address because it is impossible to live in modern times "without repeated disclosure of [this information], both privately and publicly." Commonwealth v. Duncan, 817 A.2d 455, 465-66 (Pa. 2003). Likewise, an insured does not have a REP in information provided to his or her insurance company pursuant to an arson investigation because the relationship is adversarial. Commonwealth v. Efaw, 774 A.2d 735, 738-39 (Pa. 2001). The state constitution forbids warrantless one-party consensual monitoring of a face-to-face conversation taking place in a suspect's home, but not of telephone conversations or of face-to-face conversations in other locations. See Rekasie, 778 A.2d at 631-32 (allowing such monitoring of telephone conversation); Commonwealth v. Alexander, 708 A.2d 1251, 1257-58 (Pa. 1998) (plurality opinion) (allowing such monitoring of face-to-face conversation taking place in defendant-physician's medical office); Commonwealth v. Brion, 652 A.2d 287, 289 (Pa. 1994) (forbidding such monitoring of face-to-face conversation in home); Commonwealth v. Bender, 811 A.2d 1016, 1023 (Pa. Super. Ct. 2002) (allowing such monitoring of face-to-face conversation in vehicle). Pennsylvania diverges from federal doctrine with respect to canine sniffs, requiring reasonable suspicion for a sniff of an object or location and probable cause for a sniff of a person. Commonwealth v. Rogers, 849 A.2d 1185, 1190-91 (Pa. 2004).
162. Utah has adopted Katz's REP criterion, but, in its only definite departure from the Fourth Amendment, has found a REP in bank records. State v. Thompson, 810 P.2d 415, 416 n.2, 418 (Utah 1991). Utahans retain no REP in garbage left for collection, and Utah is hesitant to depart from settled Federal Supreme Court jurisprudence. State v. Jackson, 937 P.2d 545, 546, 549 (Utah Ct. App. 1997); see also State v. Poole, 871 P.2d 531, 536 (Utah 1994) (Stewart, J., concurring).
163. Washington's analog differs markedly from the Fourth Amendment, and therefore the courts don't apply Katz's REP criterion. See State v. Myrick, 688 P.2d 151, 153-54 (Wash. 1984) (en banc). Instead Washington evaluates whether challenged government conduct constitutes an unreasonable intrusion into a defendant's "private affairs." Id. Washington diverges from federal doctrine on a number of issues, restricting government access to garbage placed for collection, see State v. Boland, 800 P.2d 1112, 1116-17 (Wash. 1990) (en banc) (garbage), vehicle location information, see State v. Jackson, 76 P.3d 217, 224 (Wash. 2003) (en banc) (location information via GPS tracking device on vehicle), and telephone records, see State v. Gunwall, 720 P.2d 808, 813 (Wash. 1986) (en banc) (telephone records); State v. Butterworth, 737 P.2d 1297, 1301 (Wash. Ct. App. 1987) (unlisted telephone number). However, canine sniffs of certain objects, including packages at a post office or bus terminal, are not restricted. State v. Stanphill, 769 P.2d 861, 865 (Wash. Ct. App. 1989) (post office); State v. Wolohan, 598 P.2d 421, 424-25 (Wash Ct. App. 1979) (bus terminal). Four justices would restrict access to power consumption records, but a majority (five) would not. In re Maxfield, 945 P.2d 196, 202, 205, 207 (Wash. 1997) (en banc). There is no protection for one's name, see State v. Faydo, 846 P.2d 539, 541 (Wash. Ct. App. 1993) (name from telephone company records), or for information in driver's license records, see State v. McKinney, 60 P.3d 46, 52 (Wash. 2002) (en banc) (suspicionless searches of driver's license records).
164. Alaska has adopted Katz's REP criterion. State v. Chryst, 793 P.2d 538, 539-40 (Alaska Ct. App. 1990). Although Alaska courts commonly state they might provide greater protection than the Fourth Amendment, there is little caselaw granting such protection with respect to the third-party doctrine. Its courts have rejected the federal doctrine of canine sniffs, holding that a canine sniff is a minimally intrusive search that must be supported by reasonable suspicion. Pooley v. State, 705 P.2d 1293, 1311 (Alaska Ct. App. 1985). And although an apartment owner has no REP in the contents of opaque trash bags placed in an apartment dumpster, the court insinuated the rule would be different for garbage placed for collection outside a single family home. See Smith v. State, 510 P.2d 793, 795, 797-98 (Alaska 1973). Alaska also diverges from federal doctrine by forbidding warrantless one-party consensual recording of a conversation taking place in a suspect's home. State v. Glass, 583 P.2d 872, 875, 881 (Alaska 1978). Alaska courts have found no REP in power consumption records and basic information (e.g., name and address) required to subscribe to a service. Samson v. State, 919 P.2d 171, 173 (Alaska Ct. App. 1996) (power consumption records); D'Antorio v. State, 837 P.2d 727, 734-35 (Alaska Ct. App. 1992) (name and basic account information from mail service records), petition granted by 882 P.2d 1270 (Alaska 1994), remanded, 926 P.2d 1158 (Alaska 1996); Chryst, 793 P.2d at 542 (name and address from utility company records). The tenor of these opinions, however, makes Alaska a probable rejecter: "Like my colleagues, I conclude that [power consumption] records do not command the same privacy protection as bank records." Samson, 919 P.2d at 173 (Mannheimer, J., concurring).
165. Until recently Arkansas had not diverged from the Fourth Amendment. See Stout v. State, 898 S.W.2d 457, 460 (Ark. 1995) (recognizing no divergence); see also Rikard v. State, 123 S.W.3d 114, 118-19 (Ark. 2003) (noting two divergences in 2002). Arkansas has found no REP in garbage left for collection, id. at 119-20, and has not otherwise departed from the federal third-party doctrine. Given its increasingly aggressive state constitutional jurisprudence, however, and given that it appears never to have considered whether it would follow the federal doctrine, Arkansas might diverge. See Burks v. State, No. CR 03-1276, 2005 WL 1358366 (Ark. June 9, 2005) (finding it unnecessary to address whether a canine sniff constitutes a search); State v. Brown, 156 S.W.3d 722, 731 (Ark. 2004) (holding four to three that the state constitution, presumably, unlike the Fourth Amendment, requires police to appraise a homeowner of his or her right to refuse consent before performing a "knock and talk" consent search, even though doing so required overruling the precedent of King v. State, 557 S.W.2d 386 (Ark. 1977)); State v. Hamzy, 709 S.W.2d 397, 399 (Ark. 1986) (addressing Fourth Amendment protection of telephone records). Arkansas jurisprudence is considered in more detail in Part VI of this Article.
166. Indiana doesn't follow Katz's REP criterion. Rather than deciding whether government conduct constitutes a search, Indiana moves right to deciding whether the conduct was reasonable. See Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). In 1980 the Indiana supreme court unanimously adopted the reasoning and holding of Smith v. Maryland, finding no REP in telephone records. In re Order for Ind. Bell Tel. to Disclose Records, 409 N.E.2d 1089, 1090 (Ind. 1980). Despite the court's adoption of Smith, however, it is not clear whether even the Fourth Amendment was asserted, let alone the state analog. See id. Lower courts in Indiana and courts in sister states have nonetheless interpreted the holding as articulating Indiana constitutional law. See, e.g., Bell v. State, 626 N.E.2d 570, 572 (Ind. Ct. App. 1993); State v. Hunt, 450 A.2d 952, 956 (N.J. 1982). In 1979 an Indiana appellate court likewise adopted United States v. Miller, finding no REP in bank records. Cox v. State, 392 N.E.2d 496, 497 (Ind. Ct. App. 1979). Although the defendant raised his state constitutional rights, there is no independent analysis of those rights in the court's brief and conclusory opinion. See id. at 496. Lastly, Indiana courts have, with little analysis, allowed a canine sniff under the state constitution. See, e.g., Rios v. State, 762 N.E.2d 153, 160-61 (Ind. Ct. App. 2002). If this were the only relevant caselaw, despite its conclusory nature, one would not think Indiana a good candidate for rejecting the federal third-party doctrine. But in the recent case of Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), the Indiana supreme court unanimously held that a search of garbage left for collection is reasonable, and hence constitutional, only if police have articulable reasonable suspicion that the subjects of the search have engaged in violations of law that might reasonably lead to evidence in the trash. Id. at 364. The court's analysis makes it unlikely the court will continue to adhere to the conclusory and rigid applications found in In re Order and Cox. Litchfield is considered in more detail in Part VI of this Article.
167. Massachusetts has adopted Katz's REP criterion, Commonwealth v. Cote, 556 N.E.2d 45, 49 (Mass. 1990), and has found no REP in garbage left for collection, see Commonwealth v. Krisco Corp., 653 N.E.2d 579, 584 (Mass. 1995) (finding REP in garbage physically available only to garbage collector on the disposer's terms); Commonwealth v. Pratt, 555 N.E.2d 559, 567-68 (Mass. 1990) (holding there is typically no REP in garbage left for collection), and business telephone records, see Commonwealth v. Vinnie, 698 N.E.2d 896, 909-10 (Mass. 1998) (finding no REP in business telephone records); Dist. Attorney for Plymouth Dist. v. New Eng. Tel. & Tel. Co., 399 N.E.2d 866, 868 (Mass. 1980) (declining to decide whether state constitution restricts trap and trace device); Commonwealth v. Feodoroff, 686 N.E.2d 479, 482-83 (Mass. App. Ct. 1997) (holding it is constitutional to access telephone records upon reasonable suspicion). An appellate court has also held that a canine sniff of the exterior of a vehicle is not a search for purposes of the state constitution. Commonwealth v. Feyenord, 815 N.E.2d 628, 633-34 (Mass. App. Ct. 2004), aff'd, 833 N.E.2d 590 (Mass. 2005). However, in Cote, the Massachusetts Supreme Judicial Court indicated that it might diverge from the federal third-party doctrine despite finding no REP in messages left under another entity's account with a third party answering service. Cote, 556 N.E.2d at 50; see also Commonwealth v. Buccella, 751 N.E.2d 373, 383 n.9 (Mass. 2001) (recognizing potential divergence again). Massachusetts has diverged from federal doctrine by forbidding warrantless one-party consensual monitoring of conversations taking place in a suspect's home, but it allows such monitoring of telephone conversations. See Commonwealth v. Eason, 694 N.E.2d 1264, 1268 (Mass. 1998) (telephone); Commonwealth v. Blood, 507 N.E.2d 1029, 1034 (Mass. 1987) (home). One should be wary of making too much of this particular divergence, however, because even the United States Supreme Court has provided special protection to the home that is arguably contrary to its third-party doctrine. See Kyllo v. United States, 533 U.S. 27, 40 (2001) (forbidding warrantless thermal imaging of a home's exterior).
168. Although Minnesota has statutory restrictions on pen registers, location tracking, and obtaining bank records, it does not appear to have decided whether the state constitution restricts these activities. MINN. STAT. ANN. § 626A.37 (West 2003) (pen registers and location tracking); MINN. STAT. ANN. § 13A.02 (West 2005) (bank records); State v. Smith, 367 N.W.2d 497, 505 & n.2 (Minn. 1985) (noting Wayne LaFave's criticism of United States v. Miller in the course of holding, without mentioning the state constitution, that a welfare recipient has no REP in an address given to welfare officials); State v. Milliman, 346 N.W.2d 128, 130 (Minn. 1984) (applying United States v. Miller to find no REP in bank records but without mentioning state constitution); State v. Benson, 484 N.W.2d 46, 50 & n.3 (Minn. Ct. App. 1992) (noting Justice Marshall's dissent in Smith v. Maryland and decisions in sister states rejecting the federal doctrine, but not deciding the issue because it was not raised). Because the court has diverged from the Fourth Amendment several times in recent years, and based on its recent divergence with respect to canine sniffs, there is nonetheless reason to believe Minnesota will reject the federal third-party doctrine. See State v. Carter, 697 N.W.2d 199, 210 n.7, 212 (Minn. 2005) (chronicling state divergence from Fourth Amendment and requiring reasonable suspicion for canine sniff). Although there is some caselaw regarding garbage searches, see State v. Dreyer, 345 N.W.2d 249, 250 (Minn. 1984) (finding no REP based on State v. Oquist); State v. Oquist, 327 N.W.2d 587, 591 (Minn. 1982) (finding no REP but conceding a householder may sometimes have such an expectation without differentiating state constitution); State v. Goebel, 654 N.W.2d 700, 703 (Minn. Ct. App. 2002) (finding no REP when trash is set on a curbside but without differentiating state constitution), only an unpublished opinion clearly addresses the state constitution, see State v. Birdsall, No. C9-02-1222, 2003 WL 21321419, at *5 (Minn. Ct. App. June 10, 2003) (unpublished) (finding no REP in garbage left for collection under state constitution).
169. New Hampshire has adopted Katz's REP criterion, State v. Goss, 834 A.2d 316, 318-19 (N.H. 2003), but it is fair to say the state burns both hot and cold with respect to the federal third-party doctrine. One could therefore make an argument for placing it in an altogether separate category (with Oregon), but with this caveat it sits well enough as a "possible rejecter." New Hampshire has diverged from federal doctrine by finding a REP in garbage left for collection, id. at 319, and by holding a canine sniff is a search, though one that is constitutional if supported by reasonable suspicion, State v. Pellicci, 580 A.2d 710, 716, 718-19, 726 (N.H. 1990) (issuing four separate opinions for the four justices; now that New Hampshire has explicitly adopted Katz's REP criterion all four would agree a canine sniff is a search, but only two justices held reasonable suspicion was adequate); see also State v. Gonzalez, 738 A.2d 1247, 1252 (N.H. 1999) (declining to decide whether a dog sniff of a package constitutes a search). On the other hand, the state supreme court has also held there is no constitutional restriction on the installation and use of pen registers. State v. Valenzuela, 536 A.2d 1252, 1262 (N.H. 1987). And in State v. Summers, 702 A.2d 819 (N.H. 1997), the court relied on Valenzuela to quickly dismiss the argument that an officer obtaining medical information from doctors constituted a search. Id. at 821; see also State v. Richter, 765 A.2d 687, 688 (N.H. 2000) (holding perusal of driver's license records does not constitute a search). New Hampshire does not seem to have considered whether its state analog restricts government access to bank records, presumably at least in part because access is restricted by statute. Bank records can be obtained via administrative or judicial subpoena only if advance notice is provided to the customer. See N.H. REV. STAT. ANN. § 359-C:8, C:10(I) (1995). Bank records can be obtained without notice via search warrant or grand jury subpoena. Id. § 359-C:9, :10(II).
170. Like New Hampshire, see supra note 134, Oregon burns both hot and cold with respect to the federal third-party doctrine. Oregon rejects Katz's REP criterion; government action is a search for purposes of the Oregon Constitution if it invades a "privacy interest." State v. Campbell, 759 P.2d 1040, 1043-44 (Or. 1988). There does not appear to be any caselaw regarding whether the state constitution restricts government access to telephone or bank records, perhaps because they are both protected by statute. See OR. REV. STAT. § 165.663 (2003) (requiring probable cause for installation of pen register); Id. § 192.565 (requiring either customer notice or reasonable suspicion for access to bank records); see also State v. Mituniewicz, 62 P.3d 417, 424 (Or. Ct. App. 2003) (noting but not deciding whether installation of a pen register without probable cause violated the state constitution). Oregon offers some protection for garbage left for collection, but that protection is likely very weak. It seems that police must merely receive the garbage of interest from the garbage collector rather than picking it up themselves. Compare State v. Purvis, 438 P.2d 1002, 1004-05 (Or. 1968) (en banc) (police obtaining trash from hotel maids did not constitute search), with State v. Galloway, 109 P.3d 383, 387-89 (Or. Ct. App. 2005) (police taking trash bags from curbside was unconstitutional seizure). Consistent with federal doctrine, a canine sniff conducted in a public place is not a search, although more directed technologically-enhanced "sniffs" might constitute a search. State v. Smith, 963 P.2d 642, 646-47 (Or. 1998). Oregon does offer significant protection for location information, typically requiring a warrant to electronically track a vehicle. Campbell, 759 P.2d at 1041. However, in a 1993 en banc appellate opinion the court held, over a dissent, that there is no state constitutional protection for medical records. State v. Gonzalez, 852 P.2d 851, 853, 855 (Or. Ct. App. 1993) (en banc). The court's language insinuates that there is no protection for any information voluntarily conveyed to a third party. See id. at 855; State v. Binner, 886 P.2d 1056, 1058 n.1 (Or. Ct. App. 1994) (interpreting Gonzalez broadly). But see Gonzalez, 858 P.2d at 858-59 (Warren, J., dissenting). Thus while there is some precedent indicating Oregon would reject the federal third-party doctrine, the state high court would need to reject or limit Gonzalez.
171. South Dakota rarely diverges from the Fourth Amendment, but there are signs this may change. In State v. Schwartz, 2004 SD 123, 689 N.W.2d 430, a two-justice plurality held a warrantless trash pull violated neither the Fourth Amendment nor its state analog. Id. ¶ 19, 689 N.W.2d at 436 (plurality opinion). Justice Konenkamp authored a concurrence arguing that a decision on the merits was premature because the court had yet to develop a jurisprudence of how to consider the state constitution independently of the Fourth Amendment. See id. ¶¶ 31-56, 689 N.W.2d at 437-45 (Konenkamp, J., concurring in the result). Justice Zinter, one of the two justices in the plurality, agreed with this call to develop an interpretive methodology. See id. ¶ 27, 689 N.W.2d at 437 (Zinter, J., concurring). And two justices dissented, arguing the state constitution did recognize a REP in garbage left for collection and that a garbage pull typically requires a warrant. See id. ¶¶ 58, 69, 689 N.W.2d at 445, 449 (Sabers, J., dissenting). Moreover, even the plurality opinion stressed that the officer at issue "had articulable reasons for focusing on the [defendants'] trash" and that "[t]his was not some police action on caprice or whim or a random check of an entire neighborhood's garbage." Id. ¶ 19, 689 N.W.2d at 436 (plurality opinion). Because these concerns would be logically irrelevant if garbage searches were completely unrestricted by the state constitution, even these two justices might agree to a restriction on garbage searches like that adopted in Indiana. See supra note 131. Thus the plurality did not hold that South Dakotans have no REP in garbage left for collection, but rather only that "under these facts" the warrantless trash pulls were "not unreasonable." Schwartz, 2003 SD 105, ¶ 19, 689 N.W.2d at 436 (plurality opinion). Therefore, of the five justices on the South Dakota Supreme Court, two might agree police need some reason for selecting the target of a garbage pull, one has taken no position on the merits, and two believe a garbage pull typically requires a warrant. Given this recent decision it is possible that South Dakota will develop an independent state constitutional jurisprudence and begin to utilize its state analog more aggressively.
172. Although it is going on fifteen years since Texas declared that its analog might not identically track the Fourth Amendment, see Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991), its only divergence remains dicta. In Richardson v. State, 865 S.W.2d 944, 953 (Tex. Crim. App. 1993) (en banc), the court rejected a lower court holding that use of a pen register could never constitute a search, declaring that "the use of a pen register may well constitute a 'search' under Article I, § 9 of the Texas Constitution." Id. at 953. Because the calls at issue were made from a county jail while the defendant was in pretrial detention, however, and because it was unclear how police had obtained certain information, the court remanded for a determination of whether this defendant had a REP. Id. at 953-54. On remand the lower court disposed of the case without addressing whether one generally retains a REP in telephone numbers dialed. Richardson v. State, 902 S.W.2d 689, 692 (Tex. Ct. App. 1995). The Texas Court of Criminal Appeals' language makes clear, however, that it would reject the federal doctrine with respect to telephone numbers, and it has since reiterated this position. See Crittenden v. State, 899 S.W.2d 668, 673 n.8 (Tex. Crim. App. 1995) (en banc); Richardson, 865 S.W.2d at 951-53. Even those declarations, however, are at least ten years old, and appellate courts have adopted federal doctrine in two other contexts and questioned the vitality of Richardson given ubiquitous Caller-ID. See Uresti v. State, 98 S.W.3d 321, 332 & n.6 (Tex. App. 2003) (questioning Richardson and holding that the defendant failed to demonstrate an actual expectation of privacy in the telephone numbers dialed); Josey v. State, 981 S.W.2d 831, 845 (Tex. App. 1998) (holding canine sniff is not a search); State v. Hardy, 963 S.W.2d 516, 527 (Tex. Crim. App. 1997) (en banc) (finding no REP in results of blood-alcohol tests taken after traffic accident); Hill v. State, 951 S.W.2d 244, 250 (Tex. App. 1997) (holding canine sniff is not a search); Aitch v. State, 879 S.W.2d 167, 171-72 (Tex. App. 1994) (questioning Richardson). It is therefore unclear whether Texas's highest criminal court would still reject Smith. Given this tenuous jurisprudence, a few other cases are worth noting. In Levario v. State, 964 S.W.2d 290, 296 (Tex. App. 1997) and Nilson v. State, 106 S.W.3d 869, 872-74 (Tex. App. 2003), the courts found no REP in garbage left for collection, but without citing the Texas Constitution. In Avelar v. State, No. 05-96-01550-CR, 1998 WL 169985 (Tex. App. Apr. 14, 1998) (unpublished), the defendant raised the Texas Constitution but also claimed the garbage at issue was not his, hence failing to demonstrate a REP. Id. at *1. In Nored v. State, 875 S.W.2d 392 (Tex. App. 1994), a Texas court applied federal doctrine to the warrantless monitoring of a beeper attached to a bicycle, but again without addressing the state constitution. Id. at 395-96. Such opinions are common in states in which there is no divergence from the federal third-party doctrine. Lastly, in Autran v. State, 887 S.W.2d 31 (Tex. Crim. App. 1994) (en banc), a three judge plurality held the Texas Constitution gives greater protection to closed containers in vehicles. Id. at 41-42 (plurality opinion). But that opinion has been criticized and abandoned, demonstrating that at least in that context, Texas jurists have no overwhelming desire to diverge from federal doctrine. See Trujillo v. State, 952 S.W.2d 879, 880-81 (Tex. App. 1997) (declining to follow Autran); Madison v. State, 922 S.W.2d 610, 613 (Tex. App. 1996) (declining to follow Autran); Johnson v. State, 912 S.W.2d 227, 233 (Tex. Crim. App. 1995) (criticizing analysis of Autran).
173. Vermont diverges from the Fourth Amendment on a number of issues, and is not shy about doing so. See State v. Geraw, 795 A.2d 1219, 1220 (Vt. 2002) (extending the prohibition against electronic monitoring in the home to situations where the participant is known to be a police officer); State v. Morris, 680 A.2d 90, 101-02 (Vt. 1996) (expressing willingness to diverge); State v. Kirchoff, 587 A.2d 988, 993-94 (Vt. 1991) (rejecting federal open fields doctrine); State v. Oakes, 598 A.2d 119, 120 (Vt. 1991) (rejecting federal "good-faith" exception to exclusionary rule); State v. Savva, 616 A.2d 774, 779 (Vt. 1991) (rejecting federal automobile doctrine); State v. Blow, 602 A.2d 552, 555-56 (Vt. 1991) (forbidding warrantless electronic monitoring in the home by conversation participants); State v. Wood, 536 A.2d 902, 905-07 (Vt. 1987) (rejecting federal standing doctrine). The court has found a REP in garbage left for collection, Morris, 680 A.2d at 100, but has not decided whether warrantless canine sniffs are permissible, State v. Cooper, 652 A.2d 995, 1001 (Vt. 1994) (holding defendant failed to properly raise state constitutionality of dog sniff). Interestingly, Vermont courts do not appear to have ever cited Smith v. Maryland or United States v. Miller, but given Vermont's strong emphasis on privacy and numerous departures from the Fourth Amendment, it is a good candidate for rejecting the federal third-party doctrine. Vermont has permitted warrantless access to prescription records, but only because the pharmaceutical industry is pervasively regulated. State v. Welsh, 624 A.2d 1105, 1111-12 (Vt. 1992).
174. While there is essentially no caselaw concerning the third-party doctrine under Arizona's Constitution, Arizona's only potential departure from the Fourth Amendment seems to be in the context of warrantless entry to a home. See Petersen v. City of Mesa, 63 P.3d 309, 312 (Ariz. Ct. App. 2003) (discussing sole divergence), vacated on other grounds, 83 P.3d 35, 37 n.3 (Ariz. 2004) (en banc). One appellate court has held that neither the state analog nor the Fourth Amendment prohibits an officer from squeezing luggage and smelling the air that emanates therefrom. See State v. Millan, 916 P.2d 1114, 1118 (Ariz. Ct. App. 1995). It is not uncommon for states that have not diverged to have very little relevant caselaw, because even when their courts consider relevant issues the state constitution will not be raised or considered. See, e.g., State v. Peters, 941 P.2d 228, 232 (Ariz. 1997) (en banc) (holding canine sniff of luggage is not an unreasonable search without considering state constitution); State v. Fassler, 503 P.2d 807, 813-14 (Ariz. 1972) (en banc) (finding no REP in garbage without considering state constitution); State v. Cramer, 851 P.2d 147, 150 (Ariz. Ct. App. 1992) (finding no REP in heat emitted from home without considering state constitution). For the sake of brevity, this Article will not always include such references. Hopefully defense counsel will begin to raise state analogs in more cases in order to develop a more complete jurisprudence.
175. Connecticut typically interprets its analog to track the Fourth Amendment, and despite several opportunities its courts have not diverged from the federal third-party doctrine. In State v. DeFusco, 620 A.2d 746
176. It appears that Delaware first diverged from the Fourth Amendment in 1999, and has given no indication it will do so with respect to the federal third-party doctrine. See Jones v. State, 745 A.2d 856, 863-64 (Del. 1999) (rejecting federal Hodari D. standard for seizure); Rickards v. State, 77 A.2d 199, 204 (Del. 1950) (terming the state analog and the Fourth Amendment "substantively identical"); State v. Phillips, 366 A.2d 1203, 1207 (Del. Super. Ct. 1976) (same). In Mack v. State, 567 A.2d 34, No. 386, 1988, 1989 WL 90727 (Del. July 31, 1989) (unpublished table decision), the court adopted federal doctrine in finding no REP in garbage placed in a public dumpster. Id. at *2.
177. Despite a state analog that includes explicit protection against unreasonable "invasions of privacy," see LA. CONST. art. I, § 5, Louisiana has interpreted its analog to provide protection equivalent to that of the federal third-party doctrine. Thus Louisiana courts have found no REP in garbage left for collection, see State v. Strickland, 94-0025, p. 21 (La. 11/1/96); 683 So. 2d 218, 228-29; State v. Rando, 2003-0073, p. 8 n.3 (La. App. 4 Cir. 4/9/03); 848 So. 2d 19, 23 n.3, telephone numbers dialed, see State v. Pennison, 99-0466, pp. 9-10 (La. App. 1 Cir. 12/28/99); 763 So. 2d 671, 677; State v. Cain, 95-0054, pp. 9-10 (La. App. 4 Cir. 2/27/96); 670 So. 2d 515, 520, or utility records, see State v. Niel, 93-1510, pp. 8-9 (La. App. 3 Cir. 5/4/94); 640 So. 2d 588, 594. Likewise canine sniffs of luggage, see State v. Alsay, 37,013, p. 8 (La. App. 2 Cir. 5/14/03); 847 So. 2d 144, 149, and vehicle exteriors, see State v. Barlow, 2000-1657, pp. 2-3 (La. App. 3 Cir. 6/27/01); 792 So. 2d 63, 64-65, are not searches for purposes of the state constitution. A court has, however, noted in dicta that the state constitution might prohibit warrantless electronic tracking of vehicles. See State v. Peters, 546 So. 2d 829, 834 (La. Ct. App. 1989). Taken in context, this single assertion, appealing though it is, seems too little to justify thinking Louisiana is likely to diverge.
178. Michigan diverges from the Fourth Amendment only if there is "compelling reason to do so," People v. Collins, 475 N.W.2d 684, 693 (Mich. 1991) (emphasis omitted) (quoting People v. Nash, 341 N.W.2d 439, 446 (Mich. 1983)), and there is no indication it will diverge in the third party context. Indeed, although Michigan at one time diverged from federal doctrine regarding one-party consensual monitoring in the home, it has since changed its constitutional rule to match the federal counterpart. See id. at 698, overruling People v. Beavers, 227 N.W.2d 511 (Mich. 1975). Michigan courts have found no REP in garbage left for collection, see People v. Thivierge, 435 N.W.2d 446, 447 (Mich. Ct. App. 1988) (adopting federal doctrine for garbage), no REP in the results of blood-alcohol tests taken for medical purposes following an automobile accident, see People v. Perlos, 462 N.W.2d 310, 313, 316 (Mich. 1990) (finding no REP in blood-alcohol tests), and no REP in utility records, People v. McPhail, No. 192699, 1998 WL 1990357, at *1 (Mich. Ct. App. Aug. 28, 1998) (unreported) (finding no REP in utility records).
179. Although Nevada recently diverged from the Fourth Amendment with respect to arrests for minor traffic violations, see State v. Bayard, 71 P.3d 498, 502-03 (Nev. 2003), the state generally follows the Fourth Amendment and there is no reason to believe it will diverge with respect to the third-party doctrine. Nevada courts have found no REP in location information, see Osburn v. State, 44 P.3d 523, 526 (Nev. 2002) (permitting the warrantless installation of a tracking device to an automobile), and have held a canine sniff of the exterior of a vehicle is not a search, see Gama v. State, 920 P.2d 1010, 1014 n.4 (Nev. 1996) (permitting dog sniff of vehicle exterior).
180. Although New Mexico diverges from the Fourth Amendment on a number of issues, there is no indication it will do so with respect to the third-party doctrine. In State v. Reynolds, 890 P.2d 1315 (N.M. 1995), the court found no REP in a driver's license, vehicle registration, and proof of insurance. Id. at 1318. In State v. Villanueva, 796 P.2d 252 (N.M. Ct. App. 1990), the court held a canine sniff taking place at a border checkpoint is not a search for purposes of the state analog. Id. at 256. Last but not least, an appellate court took an extreme view of the federal third-party doctrine in State v. Barry, 617 P.2d 873, 876 (N.M. Ct. App. 1980), abrogated in part on other grounds, State v. Wagoner, 2001-NMCA-014, ¶¶ 35-36, 130 N.M. 274, 24 P.3d 306. According to Barry, by giving his garage door opener to another person the defendant forfeited his REP in the contents of that garage. Id. The opinion does not address the state constitution.
181. New York has followed the federal third-party doctrine as a matter of state constitutional law, finding no REP in telephone and bank records. See People v. Guerra, 478 N.E.2d 1319, 1321 (N.Y. 1985) (no REP in telephone numbers dialed); People v. Di Raffaele, 433 N.E.2d 513, 516 (N.Y. 1982) (no REP in telephone toll records); Norkin v. Hoey, 586 N.Y.S. 2d 926, 931 (App. Div. 1992) (no REP in bank records). In New York a canine sniff of the exterior of a home is a search requiring reasonable suspicion, see People v. Dunn, 564 N.E.2d 1054, 1058 (N.Y. 1990), and a canine sniff of a person can constitute a search, see People v. Bramma, 655 N.Y.S. 2d 280, 281 (Dist. Ct. 1997). Neither decision is necessarily contrary to federal doctrine. See United States v. Garcia-Garcia, 319 F.3d 726, 730 (5th Cir. 2003) (assuming a dog sniff of a person was a search); United States v. Thomas, 757 F.2d 1359, 1367 (2d Cir. 1985) (holding a canine sniff of apartment door was a search). New York's highest court has stated a canine sniff of a package might constitute a search, which would deviate from federal doctrine. See People v. Offen, 585 N.E.2d 370, 371-72 (N.Y. 1991).
182. Ohio diverged from the Fourth Amendment only when the Supreme Court's decision in Atwater v. City of Logo Vista, 532 U.S. 318 (2001), forced it to either diverge or overrule its own existing precedent. See State v. Brown, 99 Ohio St. 3d 323, 2003-Ohio-3931, 792 N.E.2d 175, at ¶¶ 5-7. Ohio is very hesitant to diverge, and there is no indication it will do so with respect to the third-party doctrine. Courts interpreting the state constitution have held one retains no REP in garbage left for collection, see State v. Payne, 662 N.E.2d 60, 61-62 (Ohio Ct. App. 1995) (garbage), and that a canine sniff of a vehicle exterior is not a search, see State v. Waldroup, 654 N.E.2d 390, 394 (Ohio Ct. App. 1995) (canine sniff). In considering telephone numbers dialed, the Ohio Supreme Court stated that the state analog is "virtually identical to the Fourth Amendment to the federal Constitution and [we] refuse to impose greater restrictions under it." Ohio Domestic Violence Network v. Pub. Utils. Comm., 638 N.E.2d 1012, 1019 n.3 (Ohio 1994).
183. Tennessee has diverged from the Fourth Amendment a few times, but there is no indication it will do so with respect to the third-party doctrine. See State v. England, 19 S.W.3d 762, 766-67, 769 (Tenn. 2000) (holding, over a dissent, that canine sniff of vehicle is not a search); State v. Pendergrass, No. 01C01-9306-CR-00169, 1995 WL 108248, at *4 (Tenn. Crim. App. Mar. 9,1995) (unpublished) (finding no reason to diverge from federal doctrine with respect to telephone surveillance), rev'd on other grounds, 937 S.W.2d 834 (Tenn. 1996), substantive opinion adopted, No. 01C01-9708-CR-00359, 1998 WL 846588 (Tenn. Crim. App. Dec. 8, 1998) (unpublished); State v. Bell, 832 S.W.2d 583, 589-91 (Tenn. Crim. App. 1991) (adopting federal doctrine with respect to contents of a dumpster outside a business establishment); State v. Fears, 659 S.W.2d 370, 376-77 (Tenn. Crim. App. 1983) (finding no Fourth Amendment REP in medical records without addressing state constitution).
184. Apart from a longstanding divergence based on the unique text of its analog, see Smith v. State, 557 P.2d 130 (Wyo. 1976), Wyoming has interpreted that analog to mirror the Fourth Amendment. See id. at 132. It has, however, recently become more willing to undertake an independent state constitutional analysis. See Mogard v. City of Laramie, 32 P.3d 313, 315-17 (Wyo. 2001) (describing this transformation). This increased willingness makes it tempting to place Wyoming in the "might reject" list, but because Wyoming has yet to diverge, or even to imply that it likely will, the author has placed it here. A willingness to hear argument is not a willingness to diverge. See, e.g., Almada v. State, 994 P.2d 299, 308-11 (Wyo. 1999) (undertaking independent state analysis but holding that, like the Fourth Amendment, the state analog doesn't prohibit warrantless participant monitoring); Vasquez v. State, 990 P.2d 476, 483 (Wyo. 1999) (undertaking independent state analysis but holding that, like the Fourth Amendment, the state analog doesn't prohibit the search of an automobile incident to arrest). In Saldana v. State, 846 P.2d 604 (Wyo. 1993), the court, over a lengthy impassioned dissent, held that one has no REP in telephone numbers dialed. Id. at 611-12. The court has yet to consider whether a bank customer retains a REP in bank records or whether a canine sniff constitutes a search because when those arguments were raised they were not adequately briefed. See Morgan v. State, 2004 WY 95, ¶ 26, 95 P.3d 802, 26 (Wyo. 2004) (canine sniff); Lafond v. State, 2004 WY 51, ¶¶ 56-58, 89 P.3d 324, 56-58 (Wyo. 2004) (bank records).
185. This category includes states that only diverge as to remedy. Several states reject the federal "good-faith" exception to the exclusionary rule. See, e.g., Gary v. State, 422 S.E.2d 426, 427-29 (Ga. 1992) (rejecting the exclusionary rule as a matter of statutory interpretation); State v. Prior, 617 N.W.2d 260, 268 (Iowa 2000). Perhaps it is also worth giving the caveat that while the author is fairly confident these states have not diverged from the Fourth Amendment, the focus of the research was the third-party doctrine.
186. The Alabama supreme court recognizes that it has the authority to interpret its state analog more expansively than the Fourth Amendment, but does not appear to have done so. See, e.g., State v. Hill, 690 So. 2d 1201, 1207 n.3 (Ala. 1996). Alabama courts commonly decide third party issues without mentioning the state constitution. See, e.g., Tims v. State, 711 So. 2d 1118, 1122-24 (Ala. Crim. App. 1997) (results of blood-alcohol test); Ex Parte Clark, 630 So. 2d 493, 498 (Ala. Crim. App. 1993) (bank records); Henderson v. State, 583 So. 2d 276, 291-92 (Ala. Crim. App. 1990) (telephone records), aff'd sub nom. Ex Parte Henderson, 583 So. 2d 305 (Ala. 1991); Walls v. State, 536 So. 2d 137, 139 (Ala. Crim. App. 1988) (garbage); Gamble v. State, 473 So. 2d 1188, 1191 (Ala. Crim. App. 1985) (canine sniff).
187. Georgia does not appear to have diverged from the substantive Fourth Amendment, although it does reject the federal "good-faith" exception to the exclusionary rule as a matter of statutory interpretation. See State v. Gallup, 512 S.E.2d 66, 70 (Ga. Ct. App. 1999); Fox v. State, 509 S.E.2d 75, 78 (Ga. Ct. App. 1998) (citing Gary v. State, 422 S.E.2d 426 (Ga. 1992)), rev'd on other grounds, 527 S.E.2d 847 (Ga. 2000); Galbreath v. State, 443 S.E.2d 664, 666 (Ga. Ct. App. 1994). Georgia courts commonly decide third party issues without mentioning the state constitution. See Kesler v. State, 291 S.E.2d 497, 504 (Ga. 1982) (telephone records); Scott v. State, 606 S.E.2d 312, 314 (Ga. Ct. App. 2004) (garbage); Lirousa v. State, 408 S.E.2d 436, 437 (Ga. Ct. App. 1991) (same); Perkins v. State, 398 S.E.2d 702, 703-04 (Ga. Ct. App. 1990) (same); Culpepper v. State, 274 S.E.2d 616, 617 (Ga. Ct. App. 19S0) (bank records). Georgia courts have specifically adopted the federal doctrine of canine sniffs. See Cole v. State, 562 S.E.2d 720, 722 (Ga. Ct. App. 2002) (canine sniff of vehicle exterior); O'Keefe v. State, 376 S.E.2d 406, 412 (Ga. Ct. App. 1988) (canine sniff of container).
188. Although Iowa rejects the federal "good-faith" exception to the exclusionary rule, it has not diverged from the substantive Fourth Amendment. See State v. Carter, 696 N.W.2d 31, 36-37 (Iowa 2005) (recognizing authority to diverge but finding no basis to do so); Prior, 617 N.W.2d at 268 (rejecting good-faith exception); State v. Kern, 690 N.W.2d 698, No. 03-1615, 2004 WL 1836220, at *2 (Iowa Ct. App. July 28, 2004) (unpublished table opinion) (recognizing identical protections); State v. Buchanan, 683 N.W.2d 126, No. 03-0395, 2004 WL 893956, at *3 n.3 (Iowa Ct. App. Apr. 28, 2004) (unpublished table opinion) (same); State v. Sefcik, No. 02-1801, 2004 WL 149958, at *2 n.2 (Iowa Ct. App. Jan. 28, 2004) (same). The courts have explicitly adopted federal doctrine for garbage searches. See State v. Skola, 634 N.W.2d 687, 690-91 (Iowa Ct. App. 2001).
189. Kansas has not diverged from the Fourth Amendment. See State v. Schultz, 850 P.2d 818, 823-24 (Kan. 1993). It has explicitly adopted federal doctrine as to garbage searches, see State v. Alexander, 981 P.2d 761, 766 (Kan. Ct. App. 1999), telephone numbers and bank records, see State ex rel. Brant v. Bank of Am., 31 P.3d 952, 954, 960 (Kan. 2001) (bank records); Schultz, 850 P.2d at 823-24 (telephone and bank records), and canine sniffs, see State v. McMillin, 927 P.2d 949, 953 (Kan. Ct. App. 1996) (canine sniff of vehicle exterior); State v. Daly, 789 P.2d 1203, 1209-11 (Kan. Ct. App. 1990) (canine sniff of luggage).
190. Kentucky interprets its state analog to mirror the Fourth Amendment. See Commonwealth v. Mobley, 160 S.W.3d 783, 784 (Ky. 2005); LaFollette v. Commonwealth, 915 S.W.2d 747, 748 (Ky. 1996).
191. Maine interprets its state analog to mirror the Fourth Amendment. See State v. Patterson, 2005 ME 26, ¶ 10, 868 A.2d 188, 191; State v. Gulick, 2000 ME 170, ¶ 9 n.3, 759 A.2d 1085, 1087 n.3.
192. Maryland's state analog currently lacks an exclusionary remedy, which presumably discourages litigants from raising it as an alternative ground. See Fitzgerald v. State, 837 A.2d 989, 1035 n.4 (Md. Ct. Spec. App. 2003), aff'd, 864 A.2d 1006 (Md. 2004). There are, however, signs that this might change. See Fitzgerald, 864 A.2d at 1019-20. To date the state analog has been interpreted to mirror the Fourth Amendment. See Gadson v. State, 668 A.2d 22, 26 n.3 (Md. 1995); Gahan v. State, 430 A.2d 49, 54 (Md. 1981); Henderson v. State, 597 A.2d 486, 488 (Md. Ct. Spec. App. 1991). The state's highest court recently chose not to consider whether a canine sniff of a home's exterior constitutes a search for purposes of the state analog. See Fitzgerald, 864 A.2d at 1020-21. Although the opinion gives reason to believe Maryland might reconsider its current Iockstep approach, its courts do not appear to have done so to date. See id. at 1019-21. Lastly, although the case only concerns federal doctrine, it is worth noting that the Supreme Court's seminal decision in Smith v. Maryland affirmed the Maryland decision of Smith v. State, 389 A.2d 858 (Md. 1978), aff'd, 442 U.S. 735 (1979).
193. Mississippi has interpreted its state analog to mirror the Fourth Amendment. See Sasser v. City of Richland, 2002-KM-01641-COA (¶ 7) (Miss. Ct. App. 2003).
194. Missouri interprets its state analog to mirror the Fourth Amendment. See State v. Pike, 162 S.W.3d 464, 472 (Mo. 2005) (en banc).
195. Nebraska interprets its state analog to mirror the Fourth Amendment. See State v. Vermuele, 453 N.W.2d 441, 446 (Neb. 1990). Thus its supreme court has held one retains no REP in garbage left for collection. State v. Trahan, 428 N.W.2d 619, 622-23 (Neb. 1988). The court has also held that a canine sniff of a home's exterior is a search requiring reasonable suspicion, but held this was so both under the Fourth Amendment and the state constitution. State v. Ortiz, 600 N.W.2d 805, 817 (Neb. 1999). This is not necessarily incorrect as a matter of federal law. See discussion supra note 146.
196. North Carolina has rejected the federal "good-faith" exception to the exclusionary rule, State v. Carter, 370 S.E.2d 553, 554 (N.C. 1988), but interprets its state analog to substantively mirror the Fourth Amendment, see State v. Garner, 417 S.E.2d 502, 510 (N.C. 1992); In re Murray, 525 S.E.2d 496, 500 (N.C. Ct. App. 2000). In State v. Melvin, 357 N.E.2d 379 (N.C. Ct. App. 1987), the court held a bank customer has no REP in bank records under the state analog. See id. at 381-82.
197. North Dakota's supreme court recognizes it could diverge from the Fourth Amendment, State v. Ringquist, 433 N.W.2d 207, 212 (N.D. 1988); State v. Stockert, 245 N.W.2d 266, 271 (N.D. 1976), but does not appear to have done so, see, e.g., State v. Dodson, 2003 ND 187, ¶¶ 11 20-21, 671 N.W.2d 825, 832-33 (applying "good-faith" exception to exclusionary rule). Typically the court fails to mention the potential for any divergence, or merely applies the Fourth Amendment without mentioning the state analog. See, e.g., State v. Kesler, 396 N.W.2d 729, 735 (N.D. 1986) (holding canine sniff is not a search without mentioning state constitution); State v. Lind, 322 N.W.2d 826, 836-37 (N.D. 1982) (holding one has no REP in telephone records without explicitly mentioning either provision but citing decisions relying on Fourth Amendment); State v. Union State Bank, 267 N.W.2d 777, 779-81 (N.D. 1978) (holding bank customer has no REP in bank records without considering state constitution until offhand reference at end of opinion). The court has explicitly adopted federal doctrine with respect to searches of garbage left for collection. State v. Carriere, 545 N.W.2d 773, 776 (N.D. 1996); State v. Rydberg, 519 N.W.2d 306, 310 (N.D. 1994).
198. Oklahoma does not appear to have diverged from the substantive Fourth Amendment. See Sloan v. Sprouse, 1998 OK CR 56, ¶ 16, 968 P.2d 1254, 1258; Long v. State, 706 P.2d 915, 916-17 (Okla. Crim. App. 1985). The courts have held garbage left for collection is not protected by the state constitution, Cooks v. State, 699 P.2d 653, 656 (Okla. Crim. App. 1985), but have not decided whether a canine sniff is a search under the state analog. State v. McNeal, 2000 OK CR 13, ¶ 11 n.1, 6 P.3d 1055, 1058 n.1.; Scott v. State, 927 P.2d 1066, 1068 (Okla. Crim. App. 1996). Although Oklahoma courts have applied federal doctrine regarding bank records without mentioning the state constitution, McAlpine v. State, 634 P.2d 747, 749 (Okla. Crim. App. 1981), one justice in a special concurrence has alleged, this time without mentioning the federal doctrine, that the state analog should protect bank records, Alva State Bank & Trust Co. v. Dayton, 755 P.2d 635, 637-38 (Okla. 1988) (Kauger, J., concurring).
199. Rhode Island will only consider whether its state analog might provide greater protection than the Fourth Amendment if doing so is "strict[ly] necess[ary]." See State v. McGoff, 517 A.2d 232, 235 (R.I. 1986). Currently the state interprets its analog to mirror the Fourth Amendment; indeed it has abrogated previous deviations in order to conform to federal doctrine. See In re Advisory Opinion to the Governor, 666 A.2d 813, 816-17 (R.I. 1995) (explaining state constitutional jurisprudence); State v. Werner, 615 A.2d 1010, 1013-14 (R.I. 1992) (abrogating a previous deviation); Thomas R. Bender, For a More Vigorous State Constitutionalism, 10 ROGER WILLIAMS U. L. REV. 621, 670-73 (2005) (same). The supreme court has declined to consider whether the state constitution provides greater protection to either telephone or bank records. See McGoff, 517 A.2d at 235 (telephone records and telephone numbers dialed); Pontbriand v. Sundlun, 699 A.2d 856, 870 (R.I. 1997) (bank records). Although other potentially relevant decisions fail to raise the state constitution, one court has held the state analog does not restrict government access to prescription records. State v. Underwood, No. K2/98-0485A, 1999 WL 47159, at *4 (R.I. Super. Ct. Jan. 20, 1999) (unpublished).
200. South Carolina's analog explicitly forbids "unreasonable invasions of privacy," and the state supreme court has recognized it could grant greater protection than the Fourth Amendment. See State v. Forrester, 541 S.E.2d 837, 840-41 (S.C. 2001) (quoting S.C. CONST. art. I, § 10). To date, however, it does not appear to have diverged. The state has adopted the federal doctrine that one has no REP in telephone numbers dialed. See S. Bell Tel. & Tel. Co. v. Hamm, 409 S.E.2d 775, 779-80 (S.C. 1991).
201. Virginia interprets its state analog to mirror the Fourth Amendment. See El-Amin v. Commonwealth, 607 S.E.2d 115, 116 n.3 (Va. 2005); Lowe v. Commonwealth, 337 S.E.2d 273, 274 n.1 (Va. 1985); Henry v. Commonwealth, 529 S.E.2d 796, 798 (Va. Ct. App. 2000).
202. West Virginia interprets its state analog to mirror the Fourth Amendment. See Rogers v. Albert, 541 S.E.2d 563, 569 (W. Va. 2000); State v. Duvernoy, 195 S.E.2d 631, 634 (W. Va. 1973); State v. Bruner, 105 S.E.2d 140, 146 (W. Va. 1958); State v. Andrews, 114 S.E. 257, 260 (W. Va. 1922). It has, however, expressed a willingness to diverge if necessary in the context of interpreting what it deems to be ambiguous Fourth Amendment rules. State v. Perry, 324 S.E.2d 354, 357 (W. Va. 1984).
203. The Wisconsin supreme court has cautioned that it will not act as a "rubber stamp" in interpreting its own constitution vis-á-vis the Fourth Amendment, but it does not appear to have diverged from federal doctrine. See State v. Ward, 2000 WI 3, ¶¶ 59-60, 231 Wis. 2d 723, ¶¶ 59-60, 604 N.W.2d 517, ¶¶ 59-60; State v. Guy, 492 N.W.2d 311, 313 (Wis. 1992). Wisconsin has adopted federal doctrine with respect to garbage searches, see State v. Stevens, 367 N.W.2d 788, 794-97 (Wis. 1985); State v. Sigarroa, 2004 WI App 16, ¶¶ 13-19, 269 Wis. 2d 234, ¶¶ 13-19, 674 N.W.2d 894, ¶¶ 13-19, and bank records, see State v. Swift, 496 N.W.2d 713, 718 (Wis. Ct. App. 1993). An appellate judge has encouraged the high court to interpret the state analog to provide greater protection from canine sniffs. See State v. Miller, 2002 WI App 150, ¶ 26, 256 Wis. 2d 80, ¶ 26, 647 N.W.2d 348, ¶ 26 (Dykman, J., concurring), review denied, 2002 WI 121, 257 Wis. 2d 118, 653 N.W.2d 890.
204. See United States v. Miller, 425 U.S. 435, 437 (1976).
205. See Right to Financial Privacy Act of 1978, 12 U.S.C. §§ 3401-3422 (2000), amended by 12 U.S.C.A. §§ 3401-3422 (West Supp. 2005).
206. See Smith v. Maryland, 442 U.S. 735, 745 (1979).
207. See 18 U.S.C. §§ 3121-3127 (2000 & Supp. 2002).
208. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. No. 107-56, 115 Stat. 272 (codified as amended in scattered sections of 8, 12, 15, 18, 21, 22, 28, 31, 42, 49, and 50 U.S.C).
209. See USA PATRIOT Act §215, 50 U.S.C. §1861 (Supp. 2002). The section governs access to "any tangible thing," but library records have become the public focus. See, e.g., Jason Krause, Out From the Stacks: Librarians Lead Legal Battles Over the Patriot Act, Copyright, Tech Issues, A.B.A.J., Aug. 2005, at 14, 14;
210. Shannon McCaffrey, Librarians Angered Anew by Patriot Act, PHILA. INQUIRER, Aug. 8, 2005, at A2;
211. Michelle Wallar, Library Tells Feds: Butt Out, DENVER POST, July 27, 2005, at 4B; Am. Civil Liberties Union, Reform the Patriot Act: Section 215, http://action.aclu.org/reformthe patriotact/215.html (last visited Feb. 21, 2006); News Release, Am. Library Assoc, 7American Library Association (ALA) Announces Preliminary Findings of Study Measuring Law Enforcement Activity in Libraries: Data Shows Law Enforcement Interest in Library Records (June 20, 2005), http://www.ala.org/PrinterTemplate.cfm7Section=News&template=/ ContentManagement/ContentDisplay.cfm&ContentID=96943.
212. See McCaffrey, supra note 174.
213. See 50 U.S.C. § 1861(a)-(d). Section 215 does go beyond the absence of any Fourth Amendment restriction by forbidding the recipient of an order from notifying the target. Id. § 1861(d). But absent a law requiring such notification, recipients of third party requests typically have no motivation to notify the true party in interest (apparently things may be different when the government contacts an irate librarian, however). See McCaffrey, supra note 174.
214. Payton v. New York, 445 U.S. 573, 598-99 (1980); see also supra note 14.
215. Stout v. State, 898 S.W.2d 457, 460 (Ark. 1995) (citation omitted). The court deemed it "especially appropriate" to follow the federal doctrine regarding automobile searches incident to arrest because that doctrine had proved workable for fourteen years. See id.
216. See Rainey v. Hartness, 5 S.W.3d 410, 415 (Ark. 1999) ("Article 2, § 15, of the Arkansas Constitution is virtually identical to the Fourth Amendment, and we interpret it in the same manner as the United States Supreme Court interprets the Fourth Amendment.").
217. State v. Sullivan, 11 S.W.3d 526, 526-27 (Ark. 2000), rev'd, 532 U.S. 769 (2001).
218. Id. at 526.
219. Id. at 527.
220. Id. at 526.
221. Id.
222. Id. at 527.
223. Id. at 526. The trial court empathized with the defendant in a very personal way: "'I've got a hammer under the seat of my car today. Am I subject to being arrested and taken physically into custody because I have a hammer?'" State v. Sullivan, 16 S.W.3d 551, 554 (Ark. 2000) (Glaze, J., dissenting).
224. Sullivan, 11 S.W.3d at 527 (quoting United States v. Lefkowitz, 285 U.S. 452, 467 (1932)).
225. 517 U.S. 806 (1996).
226. See id. at 812-13; Sullivan, 16 S.W.3d at 551 (supplemental opinion on denial of rehearing).
227. Sullivan, 16 S.W.3d at 551-53. Three justices dissented. See id. at 553, 555 (Glaze, J., dissenting).
228. Id. at 552 (majority opinion).
229. Arkansas v. Sullivan, 532 U.S. 769, 771 (2001). The Court quite appropriately deemed Arkansas's holding to be "flatly contrary to this Court's controlling precedent." Id.
230. Id. at 772.
231. Griffin v. State, 67 S.W.3d 582, 584 (Ark. 2002). The split was tentative, because the court felt "the late-night intrusion upon [defendant's] property may have also violated the provisions of federal constitutional law." Id. This means the court's decision to diverge was unnecessary, and therefore all the more noteworthy. Despite this seeming desire to avoid even the potential for another reversal, the court was admirably forthright with respect to its former error in constitutional interpretation. See id. at 585. While presumably unrelated, Chief Justice Arnold resigned shortly thereafter to resume private practice. See Steve Barnes, National Briefing South: Arkansas: Chief Justice Quits, N.Y. TIMES, Dec. 2, 2003, at A29.
232. State v. Sullivan, 74 S.W.3d 215 (Ark. 2002).
233. Id. at 216.
234. 156 S.W.3d 722 (Ark. 2004).
235. Id. at 732 (requiring a homeowner be informed of his or her right to refuse consent).
236. See id. (Glaze, J., dissenting), overruling King v. State, 557 S.W.2d 386 (Ark. 1977).
237. Id. at 727 (majority opinion). The Arkansas court of appeals recently decided five to four not to diverge from federal search incident to arrest doctrine in the context of automobiles. See McDonald v. State, No. CACR 03-957, 2005 WL 1473656 (Ark. Ct. App. June 22, 2005). One dissenter chided the majority for failing to recognize "the fact that our supreme court tends to interpret [the state analog] in a manner that provides greater protection to the people of this state than the United States Supreme Court's interpretation of the Fourth Amendment." Id. (Hart, J., dissenting).
238. Robert L. Brown, Expanded Rights Through State Law: The United States Supreme Court Shows State Courts the Way, 4 J. APP. PRAC. & PROCESS 499, 499 (2002). Of course not everyone is fond of this newfound panache; three justices issued a vigorous dissent in Brown. See Brown, 156 S.W.3d at 732 (Glaze, J., dissenting).
239. Two of the three justices that dissented before Sullivan went to the United States Supreme Court also dissented from granting greater protection under the state analog. See State v. Sullivan, 74 S.W.3d 215, 222 (2002) (Glaze, J., dissenting); State v. Sullivan, 16 S.W.3d 551, 553 (Ark. 2000) (Glaze, J., dissenting). The third was no longer on the court as his temporary appointment had expired. See Ascending the Bench, Under the Radar, ARK. TIMES, July 6, 2001, at 8 (discussing Justice Smith).
240. See Sullivan, 74 S.W.3d at 218.
241. See Litchfield v. State, 824 N.E.2d 356 (Ind. 2005).
242. Id. at 357. The reader can peruse High Times' website at http://www.hightimes.com (last visited Feb. 23, 2006). In the spirit of this Article, however, one should keep in mind that the Fourth Amendment provides no restraint on law enforcement obtaining a list of websites you visit from your ISP. See supra note 71 and accompanying text.
243. Litchfield, 824 N.E.2d at 357.
244. Id. A customer provides this information for the company's use, so it definitely receives no Fourth Amendment protection. Remarkably, a customer would therefore have no Fourth Amendment claim even if the DEA stole this information from the advertisers. See United States v. Payner, 447 U.S. 727, 731-33 (1980).
245. Litchfield, 824 N.E.2d at 357. Worm's Way is available at http://www.wormsway.com (last visited Feb. 23, 2006).
246. Litchfield, 824 N.E.2d at 358.
247. Id.
248. Id.
249. California v. Greenwood, 486 U.S. 35, 40-41 (1988).
250. Litchfield, 824 N.E.2d at 359.
251. Moran v. State, 644 N.E.2d 536, 541, 543 (Ind. 1994).
252. See id. at 543 (indicating that Chief Justice Shepard did not participate); Judge Checks Out Colleague's Trash, NAT'L L.J., Dec. 5,1994, at A10. Chief Justice Shepard has been credited with triggering the "modern era in Indiana constitutional law" via his 1989 law review article.
253. Jon Laramore, Indiana Constitutional Developments: The Wind Shifts, 36 IND. L. REV. 961, 961 (2003). This claim is, of course, somewhat self-serving as it appears in a later volume of that same journal.
254. See id. (citing Randall T. Shepard, Second Wind for the Indiana Bill of Rights, 22 IND. L. REV. 575 (1989)).
255. See infra Appendix.
256. See Litchfield, 824 N.E.2d at 359. "'Because we read this section of our constitution as having in its first clause a primary and overarching mandate for protections from unreasonable searches and seizures, the reasonableness of the official behavior must always be the focus of our state constitutional analysis.'" Id. at 361 (quoting Moran, 644 N.E.2d at 539).
257. The first definition of "reasonable" in one dictionary is "agreeable to reason or sound judgment; logical." WEBSTER'S ENCYCLOPEDIC UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE 1197 (1989).
258. Litchfield, 824 N.E.2d at 359 (citing Moran, 644 N.E.2d at 539).
259. Id. at 360.
260. See Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 454 (1990) (citing Delaware v. Prouse, 440 U.S. 648 (1979)) (contrasting unacceptable discretionary stops and constitutional roadblocks).
261. See California v. Greenwood, 486 U.S. 35, 39-41 (1988).
262. Litchfield, 824 N.E.2d at 364.
263. Id. Although Indiana courts always consider the constraints upon the government actor, this does not mean there must always be individualized suspicion. The supreme court has permitted random drug testing of middle and high school students. See id. at 360 (discussing Linke v. Nw. Sch. Corp., 763 N.E.2d 972, 985 (Ind. 2002)).
264. Id. at 364.
265. Moreover it is not clear whether the United States Supreme Court would consider this factor relevant even were the conduct deemed a Fourth Amendment search. The Court has, however, sometimes considered the manner of acquisition. See Illinois v. Caballes, 125 S. Ct. 834, 844-45 (2005) (Ginsburg, J., dissenting) (collecting cases and arguing that a canine sniff of an automobile should be restricted by the Fourth Amendment because it is intimidating and adversarial, changing the entire character of the encounter).
266. See Litchfield, 824 N.E.2d at 363-64 ("The police need not go to the lengths elaborated in [a previous appellate opinion], where police rode in the trash pickup and searched [the garbage] only after it was taken by its usual collectors. But police do need to ensure that they do not cause a disturbance or create the appearance of a police raid of the residence.").
267. United States v. Knights, 534 U.S. 112, 118-19 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). The Court went on to explain that
268. Litchfield, 824 N.E.2d at 360 (quoting Nw. Sch. Corp., 763 N.E.2d at 979).
269. Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 403 (1974); see also People v. Oates, 698 P.2d 811, 816 (Colo. 1985) (en banc) (adopting Amsterdam's formulation); State v. Hempele, 576 A.2d 793, 802 (N.J. 1990) (same); State v. Nagel, 880 P.2d 451, 454 (Or. 1994) (in banc) (same); State v. Morris, 680 A.2d 90, 93-94 (Vt. 1996) (same); 1 LAFAVE, supra note 7, § 2.1(d) (same).
270. See, e.g., People v. Krivda, 486 P.2d 1262, 1268 (Cal. 1971) (in banc) (finding a REP in garbage left for collection), vacated, 409 U.S. 33 (1972); State v. Tanaka, 701 P.2d 1274, 1276-77 (Haw. 1985) (same); Hempele, 576 A.2d at 810 (same).
271. 2005 MT 180, 328 Mont. 10, 116 P.3d 800.
272. Id. ¶ 2.
273. Id. ¶¶ 9-10.
274. Id. ¶ 9.
275. Id. ¶ 15.
276. Id. ¶ 16.
277. Id. ¶ 17.
278. Hawaii has a similar jurisprudence for canine sniffs. See State v. Snitkin, 681 P.2d 980, 983-84 (Haw. 1984) (holding a canine sniff is not a search but nonetheless subjecting it to a reasonableness inquiry); State v. Groves, 649 P.2d 366, 371-73 (Haw. 1982) (same).
279. 1993 Chevrolet Pickup, 2005 MT 180, ¶ 18, 328 Mont. 10, ¶ 18, 116 P.3d 800, ¶ 18.
280. Id.
281. Id. The court only gives in and reverts to the term "reasonable" when it begins describing the Litchfield decision. See id. ¶ 19.
282. Two justices in dissent inveighed against the majority's "internally incoherent" opinion. Id. ¶ 39 (Leaphart, J., dissenting).
283. This was true in Litchfield and 1993 Chevrolet Pickup. Litchfield v. State, 824 N.E.2d 356, 358 (Ind. 2005); 1993 Chevrolet Pickup, 2005 MT 180, ¶¶ 3-4, 328 Mont. 10, ¶¶ 3-4, 116 P.3d 800, ¶¶ 3-4.
284. Federal law allows access to dialing information upon a mere certification "that the information likely to be obtained is relevant to an ongoing criminal investigation." 18 U.S.C. § 3122 (2000). Perhaps the applicant should at least have to articulate the reasons for that belief. The content of telephone conversations receives significant protection under the Federal Wiretap Act. 18 U.S.C. § 2511 (2000 & Supp. 2002).
285. Smith v. Maryland, 442 U.S. 735, 745-46 (1979).
286. Berger v. New York, 388 U.S. 41, 62-63 (1967).
287. Even no suspicion might be reasonable for information as commonplace as name and address. See Commonwealth v. Duncan, 817 A.2d 455, 465-66 (Pa. 2003).
288. Several states provide such an option by statute. See, e.g., CAL. GOV'T CODE §§ 7475, 7476(b)(1) (West 1995 & Supp. 2005); CONN. GEN. STAT. ANN. §36a-43(a) (West 2004); N.H. REV. STAT. ANN. §§ 359-C8 to -C:10 (1995). While New Jersey recently held its constitution permits access to bank records via grand jury subpoena without customer notice, the court exercised its supervisory authority over grand juries to charge a committee to investigate whether notice should be required. See State v. McAllister, 875 A.2d 866, 878 (N.J. 2005). Federal legislation enacted in response to the Supreme Court's decision in Miller sometimes requires customer notice, but it can be omitted for cause and grand jury subpoenas never require notice. 12 U.S.C. §§ 3407, 3409, 3413(i) (2000). Florida has a similar scheme for access to medical records, allowing law enforcement access via warrant without notice or via subpoena with notice. See Limbaugh v. State, 887 So. 2d 387, 393-95 (Fla. Dist. Ct. App. 2004). The Federal Stored Communications Act offers a similar choice for obtaining certain content information. See 18 U.S.C. § 2703(b) (2000 & Supp. 2002).
289. See, e.g., Shaktman v. State, 553 So. 2d 148, 151-52 (Fla. 1989) (requiring reasonable suspicion for pen registers). Several states also require reasonable suspicion for canine sniffs. See, e.g., Pooley v. State, 705 P.2d 1293, 1311 (Alaska Ct. App. 1985); People v. Unruh, 713 P.2d 370, 379 (Colo. 1986) (en banc); State v. Carter, 697 N.W.2d 199, 212 (Minn. 2005); State v. Pellicci, 580 A.2d 710, 717-18 (N.H. 1990).
290. See, e.g., Greer v. N.J. Bureau of Sec., 671 A.2d 1080, 1086 (N.J. Super. Ct. App. Div. 1996) (permitting access via administrative subpoena).
291. See, e.g.. People v. Blair, 602 P.2d 738, 746-47 (Cal. 1979) (in banc) (requiring judicial approval); People v. Larkin, 239 Cal. Rptr. 760, 762 (Dist. Ct. App. 1987) (same); People v. DeLaire, 610 N.E.2d 1277, 1282-83 (Ill. App. Ct. 1993) (allowing grand jury subpoena); People v. Jackson, 452 N.E.2d 85, 89 (Ill. App. Ct. 1983) (same).
292. See, e.g., State v. Rothman, 779 P.2d 1, 7-8 (Haw. 1989); State v. Thompson, 760 P.2d 1162, 1167 (Idaho 1988); Commonwealth v. Melilli, 555 A.2d 1254, 1258-59 (Pa. 1989). Several states also typically require a warrant supported by probable cause for location tracking via government transmitter or for garbage pulls. See People v. Oates, 698 P.2d 811, 818 (Colo. 1985) (en banc) (transfer of goods containing electronic beeper); State v. Tanaka, 701 P.2d 1274, 1277 (Haw. 1985) (garbage); State v. Hempele, 576 A.2d 793, 813 (N.J. 1990) (garbage); State v. Campbell, 759 P.2d 1040, 1049 (Or. 1988) (location tracking via radio transmitter on vehicle); State v. Jackson, 76 P.3d 217, 220 (Wash. 2003) (en banc) (location tracking via GPS device on vehicle).
293. See People v. Mason, 989 P.2d 757, 759-60 (Colo. 1999). Colorado's requirements are less stringent, however, for grand jury and administrative subpoenas. See id. at 761-62; People v. Lamb, 732 P.2d 1216, 1220-21 (Colo. 1987) (en banc); Charnes v. DiGiacomo, 612 P.2d 1117, 1122, 1123 n.12 (Colo. 1980) (en banc); see also State v. McAllister, 875 A.2d 866, 867-68 (N.J. 2005) (allowing access to bank records via grand jury subpoena). Montana permits access to medical records via subpoena but similarly requires probable cause. See State v. Nelson, 941 P.2d 441, 448-50 (Mont. 1997). Illinois requires probable cause if the information sought is deemed to be intimately personal. See In re May 1991 Will County Grand Jury, 604 N.E.2d 929, 937-38 (Ill. 1992) (pubic hair).
294. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).