W.D.Va.: Govt doesn’t get to photograph all tattoos on defs’ bodies, despite what’s available on social media; just those normally visible

The government can photograph defendants’ tattoos that are normally visible in daily use. The government cannot, however, photograph tattoos usually covered by clothes despite the fact they were occasionally revealed on social media pages. That’s not a waiver as to the government. United States v. Anthony, 2019 U.S. Dist. LEXIS 15589 (W.D. Va. Jan. 31, 2019):

… Perhaps it would be possible for an individual to reveal himself from the waist up on such a casual and consistent basis that any reasonable expectation of privacy regarding his chest is waived, but the government has not shown this. The photos submitted show several defendants in tank tops and the occasional shirtless defendant. To find that the chance use of a tank top or removal of a shirt waives all expectations of privacy pertaining to the torso would lead to an untenable result—that every individual who had ever visited a public pool waived Fourth Amendment protections to his or her body. See id. (ruling that an officer’s detention and photography of defendant’s chest without his consent violated defendant’s Fourth Amendment rights) (“Were we to find otherwise, regular visitors to public beaches and swimming pools would be surprised to discover that their visits have cost them the lasting loss of a reasonable expectation of privacy over very substantial portions of their bodies. We do not believe that any reasonable interpretation of Dionisio and its progeny could lead to such a conclusion.”).

The same: United States v. Davis, 2019 U.S. Dist. LEXIS 15200 (W.D. Va. Jan. 31, 2019).

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