Hard Cases, Bad Law – Update for December 2, 2016

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Oliver Wendell Holmes once observed that “hard cases, like notorious ones, make bad law.” Today’s decision is an apt illustration of that aphorism.

Hey, Jabar, have we got a shirt for you!
    Hey, Jabar, have we got a shirt for you!

Let’s not pull any punches. Jabar Gilliam is a scumbag. Having taken on a troubled 16-year old named Jasmin as his “girlfriend,” he took her from Baltimore to New York so she could turn tricks for him. He beat her up. He raped her. He threatened to turn her younger sister into a prostitute if Jasmin refused to let him pimp her.

‘The fact that Jasmin has a foster mother and a social worker assigned to her suggests that her life hadn’t been roses before Jabar got his hands on her. Yet someone cared enough that, when Jabar spirited her off to the Big Apple, her disappearance was immediately reported to the police. The locals got the Maryland State Police involved right away. Jasmin has told her foster mother about her new boyfriend Jabar, and it didn’t take the police long to figure out it was Mr. Gilliam.

An MSP investigator was on the case within three days of Jasmin’s disappearance. After talking to Jasmin’s biological mother – whom Jabar had apparently told he intended to pimp her daughter – the investigator contacted Sprint. He told the cellphone provider he was “investigating a missing child who is . . . being prostituted,” and requested GPS location information for Jabar’s cell phone. He said that he was making the request because of “an exigent situation involving … immediate danger of death or serious bodily injury to a person.” Sprint promptly complied, and began feeding Jabar’s real-time GPS location information to the MSP investigator, who passed the information on to the FBI and NYPD.

tracking161202The same day, Jasmin called her biological mother from the Bronx apartment of Gilliam’s mother. Sprint’s location information placed Jabar’s cellphone nearby. Canvassing the neighborhood, two New York cops saw Jabar and Jasmin on the street and followed them to an apartment building. When one of them confronted Jabar, he tried to run. The decision dryly reports “a scuffle ensued, after which Gilliam was arrested.” We can only hope they displayed the same restraint for which the NYPD is well known.

Jabar was convicted of sex trafficking of a minor by force, fraud, or coercion in violation of 18 U.S.C. 1591(a), (b)(1), and (b)(2), and of transporting a minor in interstate commerce for prostitution in violation of 18 U.S.C. 2423(a). He got 20 years. At trial, he challenging the use of GPS location information to find and arrest him. The district court ruled that the Stored Communications Act, 18 U.S.C. §2702(c)(4), authorized, and under the 4th Amendment, exigent circumstances permitted the MSP to obtain location information from Sprint without a warrant.

Yesterday, the 2nd Circuit upheld the conviction. Considering the alternative – letting Jabar walk out of prison a free pimp – the outcome was probably preordained. Yet in doing so, the Court has sanctioned the incremental creep of government intrusion into individual privacy.

forcedsex161202The Stored Communications Act says that a provider like Sprint “may divulge a record or other information pertaining to a subscriber . . . to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.” The disclosure may not include the contents of the communications, but the Court had no trouble concluding that “other information” included GPS data.

The Court’s understandable concern for Jasmin’s well-being led it to easily conclude that the situation involved “an emergency involving danger of . . . serious physical injury.” The Court said “we think it obvious that “involving” includes a realistic threat of such injury, not just a completed injury.” To the MSP officer, the Circuit ruled, “the evidence available… at the time of the search for Gilliam’s location was compelling. Based on discussions with Jasmin’s foster mother, social worker, and biological mother, law enforcement officers had a substantial basis to believe that Gilliam was bringing Jasmin to New York City to require her to work there as a prostitute. That type of sexual exploitation of a minor has often been found to pose a significant risk of serious bodily injury. As the 9th Circuit has observed, prostitution of a child involves the risk of assault or physical abuse by the pimp’s customers or by the pimp himself.”

The 2nd admitted that while “several courts have found that exigent circumstances justified warrantless entry into premises to avoid risk of injury to a minor held there… Locating on the streets a victim of sexual exploitation might seem to present a less immediate need for police action than entering premises where such a victim is being held, but it is nonetheless sufficient to constitute exigent circumstances.” The Circuit ruled that the existence of “exigent circumstances” satisfied both the Stored Communications Act and the 4th Amendment.

noprost161202There’s nothing quite as odious to polite society as prostitution. Recent blending of the scourge of human trafficking with long-standing societal abhorrence of the sex trade has made it all the worse. Here, the evidence is that Jasmin told Jabar when she met him that she was 17 years old and currently whoring for another pimp. No question she was a victim – indeed an underage victim – but she was certainly not innocent in the nonlegal sense. And of course, it turned out Jabar had hit her and that she was not a willing participant in his pimp practice.

But the expansive application of the exigent circumstances doctrine in this case – easy to do because of the appalling nature of the offense – is troubling. Based on a reasonable belief that someone was engaging in an offense that could lead to other offenses – physical abuse, for example – the police were able to access real-time location information and track a suspect until they caught him.

... except when it's not.
        … except when it’s not.

The appellate panel said that Congress has deemed it reasonable to subordinate any individual privacy interest in cell phone location information to society’s more compelling interest in preventing an imminent threat of death or serious bodily injury, and has therefore given  service providers the authority to decide whether there existed an emergency involving danger of death or serious physical injury to any person.” But this was danger by statistic or anecdote. There are thousands of people in America plying the sex trade, and what made this case a federal crime was that the victim was a little more than a year from the age of majority. The danger to her at age 16+ was not statistically greater than the danger to her at age 18, at which time Jabar’s disgusting conduct would no longer be a crime. As the opioid crisis illustrates, illegal drugs pose a risk of physical injury and death. Would this be enough to justify warrantless real-time location monitoring of suspect drug traffickers?

Oliver was right: hard cases do make bad law.

United States v. Gilliam, Case No. 15-387 (2nd Cir. Dec. 1, 2016)LISAStatHeader2small

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