Monday, February 16, 2009

Keeping Your Jurisdictions Straight

This post is about a perfectly logical – but completely wrong – argument a defendant made in moving to suppress evidence in a criminal case. The case is U.S. v. Christie, 570 F. Supp.2d 657 (U.S. District Court for the District of New Jersey 2008).

Basically, Christie was charged with multiple counts of possessing, receiving and advertising child pornography, all in violation of federal law.

The charges arose from an FBI investigation that focused, in part, on images of child pornography posted on a NAMGLA (which the court’s opinion says is an acronym for North American Man Girl Love Association) website by a user identifying himself as “franklee.” U.S. v. Christie, supra. FBI agents were apparently able to trace franklee by using the IP address linked to the postings; the agents apparently got the subscriber information linking Christie to the IP address by getting information from his ISP. U.S. v. Christie, supra.

After being charged, Christie filed several motions to suppress the evidence the agents found at his home, one of which focused on how they found out who he was and where he lived. According to the court, Christie claimed he had a “legitimate expectation of privacy in his Internet subscriber information such that the Government violated the Fourth Amendment by learning, absent a warrant or other appropriate procedures, the identity of the person utilizing the IP address associated with the anonymous online name of `franklee.’” U.S. v. Christie, supra.

Christie based his argument that he had a Fourth Amendment expectation of privacy in his subscriber information on a New Jersey appellate court decision: State v. Reid, 389 N.J. Super. 563, 914 A.2d 310 (Appellate Division of the Superior Court of New Jsersey 2007). As the federal district court ruling on Christie’s motion to suppress explained, “the Appellate Division of the Superior Court of New Jersey held, in Reid, that New Jersey citizens have `an expectation of privacy under [the] State Constitution with respect to this identifying information’ associated with an IP address.” U.S. v. Christie, supra.

What Christie didn’t (or couldn't) know is that the New Jersey Supreme Court also heard the Reid case and also held that New Jersey citizens have an expectation of privacy in their Internet subscriber information. I did a blog post on the New Jersey Supreme Court’s opinion last year; you can check it out if you want to know more about what they said. I don’t know if Christie hadn’t heard about that decision or if it hadn’t issued when he filed his motion to suppress. It would have strengthened his argument but, as I noted earlier, that really wouldn’t have mattered because his argument was doomed from the outset.

Remember, Christie is being prosecuted in federal court by federal prosecutors. The decision of the Appellate Division of the Supreme Court of New Jersey (and the New Jersey Supreme Court’s opinion) in the Reid case held that New Jersey citizens have an expectation of privacy in the kind of subscriber information the FBI agents used to find Christie. Therefore, if the agents had been New Jersey law enforcement agents, they could not have simply (which seems to be what happened . . . it isn’t clear from this opinion but that seems to have been the case) have contacted the ISP linked to the IP address and found out what address it was associated with. Instead, they would have had to get a search warrant (Appellate Division) or a grand jury subpoena (New Jersey Supreme Court). Either way, what they did would have violated . . . New Jersey law.

Americans live in a federal system. That is, we live in a two-tiered legal system: We are governed by the law of the state (or the District of Columbia) we live in and by federal law. Each set of laws – that is, the laws of each state and the laws of the federal system – are distinct. The law as decided by a New Jersey state court applies in New Jersey state court proceedings; it does not apply in federal proceedings, even if they are taking place in the territory of the state of New Jersey. As the Christie court explained, the
Appellate Division expressly noted that federal courts have `uniformly’ held that `internet subscribers have no right of privacy under the Fourth Amendment with respect to identifying information on file with their internet service providers.’ . . . [T]he Supreme Court of New Jersey subsequently affirmed the Appellate Division, and also noted that `[f]ederal case law interpreting the Fourth Amendment has found no expectation of privacy in Internet subscriber information . . . [and] [t]he logic of those precidents extends to subscriber information revealed to an ISP’ . . This federal Court declines to ignore the unanimous decision of every other federal court to have addressed this issue by adopting the . . . interpretation of the Supreme Court of New Jersey, which . . .distinguishes the protection afforded under the state constitution from that of the federal Constitution. Therefore, this Court holds that Mr. Christie does not have a legitimate expectation of privacy in the information associated with his IP address.
U.S. v. Christie, supra.

In other words, the only way the two New Jersey appellate courts (Appellate Division and Supreme Court) could hold that New Jersey residents have an expectation of privacy in their Internet use and subscriber records is to base that holding on the New Jersey state constitution. The U.S. Supreme Court has held that state supreme courts are the masters of their state constitutions; they are free to construe those constitutions as providing more protection for their citizens than does the U.S. Constitution (which is interpreted by the U.S. Supreme Court). The U.S. Supreme Court is the ultimate arbiter of the U.S. Constitution; state supreme courts are the ultimate arbiters of their respective state constitutions . . . and the two systems operate completely independently of each other.

This doesn’t mean a state supreme court can’t consider the U.S. Supreme Court’s decisions or reasoning in deciding how to construe its state constitution, or vice versa. It does mean that the precedential effect of a state supreme court’s decision is limited to cases brought under the law of that state; courts in other states, and even federal courts, can cite the rationale a state supreme court used as an example of good reasoning.

A federal court can say, in effect, “This is what the State Supreme Court of X said in ruling on this issue. We think their analysis is sound and, since this isn’t a federal constitutional or federal statutory issue, we’re going to apply their rationale in deciding the issue before us.” So, for example, a federal court might be faced with having to decide how a particular criminal term – “damage” or “malice”, say – should be construed. If there’s no guidance on the issue in federal statues or federal court decisions, then a federal court may well look to see how state courts have dealt with that issue; if it finds a decision with reasoning it likes, it may cite that reasoning, but not as precedent. It simply cites it as the source of the conclusion it’s going to reach.

But that’s not what was going on in the Christie case. Mr. Christie had the misfortune of mixing his legal metaphors: He tried to use a state court’s decision as precedent in a federal case, which just won’t work. As a result, he lost.

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