Category Archives: Administrative search

D.Del.: Claiming a state administrative subpoena creates a “Fourth Amendment defense” is frivolous; removal denied, attorneys fees imposed

The Delaware DOJ sought records in an administrative proceeding against the defendant, and the defendant claimed the subpoena violated the Fourth Amendment and attempted to remove the whole case to federal court because that was a federal defense. This is … Continue reading

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OH7: Ohio SW can be for info on California server; SCA contemplates it and CA law says providers must comply with out-of-state process

Defense counsel wasn’t ineffective for not challenging a social media account search warrant issued in Ohio on a California server. The SCA contemplates this, and California law directs computer companies to honor process from other states. Defendant can’t win on … Continue reading

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S.D.N.Y.: Controlled buy at def’s door + sound from inside = protective sweep

Officers did a controlled buy [used to be called “buy-bust”] of drugs and then used the alleged noise from inside to justify a protective sweep. The protective sweep was valid. Defendant was in the doorway and Santana (1976) justified the … Continue reading

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NYLJ: New York’s Red Flag Law Raises a Red Flag for the Fourth Amendment

NYLJ: New York’s Red Flag Law Raises a Red Flag for the Fourth Amendment (“New York’s Legislature should revise the Red Flag Law to expressly comport with the form and content requirements of search warrant applications pursuant to CPL 690. … Continue reading

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S.D.Tex.: Strip clubs aren’t “closely regulated businesses” for administrative searches

“In 2007, the Texas Legislature instituted the Sexually Oriented Business Fee Act (‘the SOBF’)” which requires admission fees into strip clubs and records inspections. A sexually oriented business is not one of those that can be “closely regulated” for administrative … Continue reading

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WI: Failure to respond to City’s letter to inspect rat-infested property was implied consent

The city wrote by certified mail to the owner of rat-infested property apparently abandoned since he hadn’t come from home in California since before Covid. State law allows inspections if requested and permitted. The owner never responded. His Fourth Amendment … Continue reading

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D.Alaska: Admin. inspections of intrastate goldmines are legal under Mine Safety and Health Act

The Mine Safety and Health Administration sought an inspection of the respondent goldmine based on safety complaints it had received. The Fourth Amendment does not require an administrative warrant for an inspection. “Regulatory inspections pursuant to the Mine Act are … Continue reading

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D.N.M.: Police entry into a fire damaged home after fire was out and it was “all clear” violated 4A

There was a kitchen fire in defendant’s home, and firefighters told the police that there were unsecured handguns in the house. A police aide entered the house without a warrant and took them. The government argues the house was abandoned … Continue reading

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D.Idaho: Parole search condition justified extending the stop

There was reasonable suspicion for continuing the stop, then probable cause. “Even absent probable cause, the search of Mr. Watson’s car was permissible as a search pursuant to a parole condition.” That alone justified extending the stop. United States v. … Continue reading

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CA11: Pretext for a criminal search can be an issue in administrative searches

Pretext for a criminal search can be an issue in administrative searches. “Accordingly, the district court erred in failing to recognize the existence of a genuine issue of material fact as to whether the February 2015 administrative search was focused … Continue reading

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W.D.Wash.: Administrative SDT to Starbucks is reasonable in scope

An administrative subpoena duces tecum to Starbucks is enforced. It is reasonable in scope. Su v. Starbucks Corp., 2023 U.S. Dist. LEXIS 179355 (W.D. Wash. Oct. 4, 2023):

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DC: Facebook can’t assert 1A or 4A privacy of posts under SCA

Facebook and the District of Columbia are litigating a subpoena from the D.C. A.G. over alleged Covid misinformation. There is no expectation of privacy in what is posted on Facebook. “May” divulge in the Store Communications Act is an excuse … Continue reading

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CA9: Mixed motive for admin search doesn’t make it unreasonable

“The presence of an impermissible motive does not, by itself, establish that the administrative search was pretextual, Orozco, 858 F.3d at 1213, and here, the record shows the presence of a valid motive: the city inspector obtained the administrative search … Continue reading

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E.D.N.Y.: Admin search power doesn’t give govt power to search for ulterior motive

Plaintiff operates 20 pawnshops in NYC. The NYPD conducted records searches without subpoena or warrant, and, after a two-week trial, plaintiff prevailed with a $1m verdict. The fact a business has to maintain records doesn’t mean there is no reasonable … Continue reading

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D.D.C.: SEC admin subpoena for law firm cyberattack was narrowed to only affected clients

Covington & Burling was the target of a cyberattack, and the SEC investigated. It wanted the names of all affected clients, but C&B resisted, seeking narrower disclosure. The law firm agreed that only certain affected clients should be disclosed, and … Continue reading

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NY Cortlandt Co.: Requirement of business records searches to take low income housing vouchers violates 4A

Acceptance of section 8 low income housing vouchers violates the Fourth Amendment because the landlord has to permit searches of business records to participate. Rental property is not a closely regulated industry, and 1981’s Sokolov v. Freeport controls. “Thus, by … Continue reading

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CA11: Inmate email has same 1A protection snail mail does

Prison email to family members is protected by the First Amendment. “Just as the Fourth Amendment protects against searches by technology unknown in the 18th century, see Kyllo v. United States, 533 U.S. 27, 34-38 (2001), the First Amendment protects … Continue reading

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NY: Requirement of electronic logging devices of hours trucks are driven is reasonable under NY Const.

Electronic logging devices required under the Federal Motor Carrier Safety Administration adopted in New York survive a facial challenge. “We hold that the warrantless inspections authorized by the regulations fall within the administrative search exception to the warrant requirement and … Continue reading

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ID: Statutory admission of evidence in administrative proceeding is not a separation of powers issue

Admission or exclusion of evidence in an administrative proceeding over a driver’s license is not governed by the rules of evidence, but it does recognize constitutional limitations. That is not a separation of powers issue because it is within the … Continue reading

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OH3: Invalid admin SW was saved by GFE

An administrative search warrant issued under the state criminal procedure law was invalid because of limits on who could request and serve a warrant (i.e., law enforcement officers and prosecutors). However, the good faith exception applies to administrative warrants, too. … Continue reading

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