First Amendment and Google Search in Criminal Sentencing

Can Search History Be Used Against You at Sentencing?

Modern “smart” electronic devices store some of the most sensitive information of a person’s life. The Supreme Court has recognized that data stored on smart phones can “reveal much more in combination than any isolated record,” allowing those with access to it to reconstruct “[t]he sum of an individual’s private life.” Riley v. California, 134 S. Ct. 2473 (2014).

It’s more than just phones, though, that store this data. The servers attached to smart devices collect and store data much more data than is stored on the physical device. Search engines to conduct searches using cellular phones and desktop computers.

Additionally, a person may conduct searches verbally with Google Assistant, Google Home, Amazon Alexa, Amazon Echo, Microsoft’s Cortana, and Apple’s Siri. Most of these services store not only the text content of the searches but also store a recording of the voice input.

The First Amendment to the United States Constitution guarantees the right of freedom to exercise religion, speech, assembly and have power of the press. Protected speech can range from political beliefs, reading and viewing habits, the actual words one speaks, and certain forms of pornography. The First Amendment protects communications delivered over the Internet with the same veracity that it protects traditional print communications. Reno v. ACLU, 521 U.S. 844 (1997). To be sure, the United States Supreme Court precedents “provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium [the Internet].” Id. at 870. In fact, in today’s digital age speech with the internet is everywhere. 

Search engine selection decisions by individuals are a consequence of not just one’s editorial choices but also of the computerized algorithms that search engine programmers have developed to implement such choices. Accordingly, the process of obtaining results based on search from a search engine are automated. This automated process, though, does not minimize the First Amendment protection afforded to search engine results. 

The Fourteenth Amendment of the United States Constitution incorporates the Sixth Amendment right provided to an accused of a jury trial in state prosecutions. People v. Beck, ___ Mich. ___ (2019); see also Duncan v. Louisiana, 391 US 145, 149 (1968). Further, the Fourteenth Amendment’s right to due process includes “the presumption of innocence--that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of criminal law.’” In re Winship, 397 US 358, 363 (1970).

Almost twenty years ago, federal jurisprudence relating to sentencing underwent the “Apprendi Revolution” as a consequence of the United States Supreme Court decision in Apprendi v. United States, 530 US 466 (2000). In Apprendi, the United States Supreme Court established the rule that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. Further, the Court instructed that the foundation of the rule was the “Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment” and that “[t]he Fourteenth Amendment commands the same answer in this case involving a state statute.” Id. at 476.

In the years following Apprendi, sentencing law has changed dramatically in both federal and Michigan jurisprudence. Beginning with federal sentencing practice, the mandatory sentencing guidelines scheme under federal law was struck down and, as a consequence, the guidelines were rendered advisory only. Booker v. United States, 543 US 220 (2005). Much more recently, in 2015, our Michigan Supreme Court followed suit and held that minimum sentencing guidelines were no longer mandatory but were instead advisory. People v. Lockridge, 498 Mich 358 (2015). As a consequence, this Honorable Court now has discretion to fashion sentences, taking into account factors including the advisory guidelines range. 

As recently as July of 2019, the Michigan Supreme Court vacated a sentence for felon-in-possession. People v. Beck, supra. The Court rationalized that a defendant’s due process rights were violated because the sentencing court punished the defendant more severely on the basis of the judge’s finding by a preponderance of the evidence that the defendant committed a murder which a jury had acquitted him. 

The inclusion of uncharged conduct rests upon analysis in McMillan v. Pennsylvania, 477 US 79 (1986), a case that our Michigan Supreme Court in Beck determined has “been overruled in everything but name” and “its constitutional analysis rests on very shaky footing in light of intervening caselaw.” Beck, supra. In Beck, the Michigan Supreme Court conducted an analysis of the United States Supreme Court decision in McMillan to determine if the holding was dispositive of claims that the use of acquitted conduct does not violate due process. In its review, the Beck court found that the holding in McMillan was in jeopardy in the wake of Alleyne v. United States, 570 US 99 (2013). Instructively, the Court engaged in hypotheticals to illustrate the possibility of absurd results from the McMillan ruling:

Hypotheticals are helpful. Imagine a judge sending a defendant acquitted of all the charges against him to prison because the judge believed the evidence supported some punishment. Or a judge in a bench trial acquits a defendant of some charges but convicts of others and then punishes him as if he had been convicted of all of the charges. Beck, supra.

An open question is how does a sentencing court regard search history when utilizing its discretion to fashion a sentence pursuant to People v. Lockridge?