Laurent Sacharoff, The Relational Nature of Privacy, 16 Lewis & Clark L. Rev. 1249 (2012).

Abstract:
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WaPo: NSA fact sheet on surveillance program pulled from Web after senators’ criticism by Greg Miller and Ellen Nakashima:

National Security Agency Director Gen. Keith B. Alexander acknowledged Tuesday that a fact sheet on the agency’s Web site inaccurately described the extent to which the communications of U.S. citizens are protected from the spy agency’s collection of e-mail and other material from technology companies.

A report to the police of a residence door swinging in the wind made the officer suspect a burglary, and he rang the doorbell and knocked before entering. Marijuana was found. The fact the door was not damaged when the officer arrived was not determinative. People v. Lemons, 299 Mich. App. 541, 830 N.W.2d 794 (2013).

There is no suggestion in Randolph that the defendant be asked for consent before he is removed from the premises. (quoting United States v. Travis, 311 Fed. Appx 305, 310 (11th Cir. 2009)). United States v. Swilley, 2013 U.S. Dist. LEXIS 24132 (N.D. Ga. February 1, 2013).*

High crime area, nervousness, and object in pocket that could have been a gun were all factors in reasonable suspicion for a patdown. United States v. Felton, 2013 U.S. Dist. LEXIS 22944 (E.D. Wis. February 20, 2013).*

The stop was based on not being able to see the LPN, but the officer could by the time he got out of the car. While the reason for the stop was dispelled, it would be impractical to require the officer to turn on his heel and go back to his patrol car and drive away without talking to the motorist to at least tell him what’s going on. When he got to the window, he saw an open container, and within seconds developed reasonable suspicion defendant was under the influence. The trial court erred in granting the motion to suppress. State v. Amick, 2013 SD 37, 831 N.W.2d 59 (2013).

Cotenant’s third-party consent was valid. United States v. Ortiz, 2013 U.S. Dist. LEXIS 67020 (S.D.N.Y. May 8, 2013).*

The Ohio legislature dictates that a meth lab is exigent circumstances for a search. Reading that statute and others together, the court concludes a meth lab fire supports a conviction for aggravated arson. State v. Grasso, 2013 Ohio 1894, 2013 Ohio App. LEXIS 1782 (8th Dist. May 9, 2013).

Defendant was detained too far from the place of search for the arrest to be valid, but he threw his drugs away, and the abandonment supports the conviction. State v. Cruz, 2013 Ohio 1889, 2013 Ohio App. LEXIS 1774 (8th Dist. May 9, 2013).*

Defendant was a suspect in a cold case based on a DNA hit. When the police came to him for a new DNA sample to confirm, he refused, so a court order was obtained. It was constitutional error to cross-examine him about his prior refusal to consent as evidence of guilt. State v. Gauthier, 174 Wn. App. 257, 298 P.3d 126 (2013):

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Court is troubled by officer’s omission of the named informant’s conviction for falsifying prescriptions but weighed against the detail of his report, the omission did not affect the probable cause determination. But, the court doesn’t like how it has to decide the case, so it chides the officer’s omission. United States v. Tanguay, 907 F. Supp. 2d 165 (D. N.H. 2012):

Because the application for the warrant to search Tanguay’s computer demonstrates probable cause that it contained child pornography, even when clarified by the facts that Lieutenant Nolet intentionally or recklessly omitted, Tanguay’s motion to suppress the evidence allegedly found during that search must be denied. As a result of this ruling, Lieutenant Nolet’s intentional or reckless conduct in withholding Wiggin’s felony falsification conviction from the magistrate will go “unpunished” in the sense that it will have no effect on Tanguay’s prosecution here. The same can be said of her strained efforts to defend that decision through her affidavit to, and testimony before, this court.

But Franks simply does not authorize the use of the exclusionary rule as a deterrent for even intentional misstatements or omissions in a warrant application, unless it was those misstatements that created (or, in the case of omissions, preserved) probable cause. Indeed, prior to Franks, lower courts had held that “‘[t]he fullest deterrent sanctions of the exclusionary rule should be applied to such serious and deliberate government wrongdoing.'” 2 LaFave, supra, § 4.4(c), at 549-50 (quoting United States v. Carmichael, 489 F.2d 983, 989 (7th Cir. 1973) and citing additional cases). Franks has been criticized for the Court’s failure to “acknowledge[] the existence of this body of authority,” let alone “explain[] in some detail the reasons which justify a rejection of it,” id. at 550, and a case of this nature lends a measure of support to such criticism. But criticism is one thing, and controlling law is another.

Under that controlling law, the evidence seized through the search warrant cannot be excluded unless the facts that Lieutenant Nolet intentionally or recklessly omitted would have negated probable cause for the search. They would not have, so Tanguay’s motion to suppress must be DENIED.

Antoine Jones won his landmark case holding GPS tracking requires a warrant, but he loses on remand to the good faith exception. United States v. Jones, 908 F. Supp. 2d 203 (D. D.C. 2012):

Defendant, with the support of an amici curiae brief filed by Electronic Frontier Foundation and Center for Democracy & Technology (Brief Amici Curiae in Support of Defendant Jones’ Motion to Suppress, Aug. 13, 2012 [ECF No. 644] (“Amicus Br.”)), argues that under the Fourth Amendment, the government was required to obtain a warrant based on probable cause prior to tracking Jones’ location based on cell-site data provided by a third party provider for a four-month period of time. The Court, however, need not resolve this vexing question of Fourth Amendment jurisprudence, since it concludes that the good-faith exception to the exclusionary rule applies.

Such is the nature of Fourth Amendment litigation in the modern era. Get used to it.

The Mine Safety & Health Review Commission sought personnel and medical records of mine workers. Mines are clearly regulated industries. The record demands were within the power of the agency granted by Congress. Viewing them as administrative subpoenas, the court finds the subpoenas reasonable under the Fourth Amendment as to the miners’ privacy and the companies. Big Ridge, Inc. v. Fed. Mine Safety & Health Review Comm’n, 715 F.3d 631 (7th Cir. 2013):

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Cato: NSA Spying, NSA Lying, and Where the Fourth Amendment Is Going by Jim Harper:

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The Hill: NSA takes the Fourth

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Defendant was constructively arrested at the hospital after wrecking his car and likely being under the influence. The blood draw at the hospital was reasonable and with exigent circumstances. The court credits that it would have taken “hours” to get a warrant. The court cites Schmerber but not McNeeley. State v. Hollis, 2013 Ohio 2586, 2013 Ohio App. LEXIS 2564 (5th Dist. June 17, 2013).

The CI said he was in defendant’s motel room and saw a lot of crack cocaine for distribution. “The court finds that the affidavit provides scant, but sufficient, basis to establish probable cause and that even if the affidavit was insufficient, the officers were justified in relying upon it in good faith.” United States v. Eldridge, 2013 U.S. Dist. LEXIS 86429 (S.D. Ala. June 14, 2013).*

Defendant was encountered walking on a road on BLM land in the desert 15 miles north of the border, and he was not dressed to be hiking or camping in the winter. The officer became suspicious when he and his companion had no Ids. Another officer arrived. The detention was not too long, when they admitted being in the country illegally. Defendant had been previously removed. United States v. Grande, 2013 U.S. Dist. LEXIS 87139 (S.D. Cal. June 20, 2013).*

The officer did not prolong the stop. Defendant was stopped for following a tractor-trailer too close that she came up on at high speed right in front of the officer. When she was looking for her papers on the car, her gun fell out of the glove compartment. The check of the DL and firearm took 8 minutes, and both came up clean. Then the officer was writing a warning ticket and asked for consent. Her response “Mmm mmm” to a request to search her car was interpreted by the officer and the court as consent. That’s how she answered most questions on the video. United States v. Ferguson, 2013 U.S. Dist. LEXIS 87192 (S.D. Ga. May 29, 2013):

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Officers did not have to ask the target of the search for consent before getting it from somebody with apparent authority. He was arrested for a shooting, handcuffed, and put into a police car. This was standard protocol, and the court doesn’t find that it was being devious to avoid his potential denial when he wasn’t even asked. United States v. Perpall, 2013 U.S. Dist. LEXIS 87535 (S.D. Fla. June 12, 2013):

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Bloomberg News: U.S. Surveillance Is Not Aimed at Terrorists by Leonid Bershidsky:

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The initial intrusion into the home in this case was based on exigent circumstances and dealing with an emergency. Officers saw weapons in plain view but dealt with the emergency. A second entry to seize the weapons was valid. State v. Rothwell, 2013 Tenn. Crim. App. LEXIS 528 (June 20, 2013).*

The defendants’ stop was for a traffic violation, and the officer wrote a warning ticket, which he testified takes “12, 16, 17” minutes anyway. It took a drug dog 17 minutes to arrive. The court credits the officer did not intentionally stall for the drug dog to arrive, but there was reasonable suspicion anyway. They were in a rental car and the renter wasn’t present, so standing was doubtful, but it was assumed anyway. United States v. McCoy, 2013 U.S. Dist. LEXIS 87644 (D. Utah June 20, 2013).*

An officer on foot patrol was encountered by a CI who gave really specific and richly detailed information about the defendant and methamphetamine dealing. The officer set up surveillance and saw appellant and made a traffic stop based on window tint. Defendant consented to a search of his person and car and meth and paraphernalia was found. Based on the CI, a search warrant was obtained for the house, and it was with probable cause, the detail of the CI being first corroborated by the stop. Kirby v. State, 2013 Ark. App. 393, 2013 Ark. App. LEXIS 416 (June 19, 2013).*

This is a stark issue of four year old staleness with things of no enduring value (unlike firearms or child porn) that I’ve never seen before that well demonstrates the issue. Few cases have this obvious a fact pattern, but it’s a good example to show how it works:

Defendant was a juvenile four years ago, and he was ratted out as a suspect in a car burglary. Having nothing else on him, the police obtain a search warrant for his house for the evidence of the theft, and the district court finds it stale. The question is: since this is “years,” what would logically be kept that long? None of this stuff. [The only surprising thing about this case is that the government indicted in the face of these facts.] United States v. Davis, 2013 U.S. Dist. LEXIS 86292 (M.D. La. June 19, 2013) (emphasis the court’s):

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Sun Sentinel: Bank robbery suspect wants NSA phone records for his defense by Terrance Brown. His own cell phone company didn’t have his records that far back.

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New Yorker: Annals of Surveillance: The Prism by Jill Lepore:

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Colin Miller, OK Computer: The Fourth Amendment and Searches of Seized and Imaged Electronic Evidence, on SSRN. Abstract:

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Defendant invited his girlfriend to spend the weekend at a relative’s house while the relative was gone for the weekend. He told her she could use his computer. While on the computer, she found child pornography, and she called the police. Because she had been given full access to the computer, she had apparent authority to consent to a look at the computer by the police who later obtained a search warrant. State v. Sobczak, 2012 WI App 6, 338 Wis. 2d 410, 808 N.W.2d 730 (2011), affd State v. Sobczak, 2013 WI 52, 2013 Wisc. LEXIS 264 (June 20, 2013), posted here.

There was probable cause for arrest of the plaintiff university professor for disorderly conduct and stalking, so his false arrest claims fail. Collins v. Univ. of N.H., 664 F.3d 8 (1st Cir. 2011).*

The court credits the officers’ version that they got defendant out of the car during a traffic stop and his gun fell during a scuffle with the officers. Defendant says that it came from an unreasonable search of the car, which the court finds did not happen. United States v. Jones, 2011 U.S. Dist. LEXIS 146519 (E.D. Pa. December 20, 2011).*