Wired.com: Yahoo, Like Google, Demands Warrants for User E-Mail by David Kravets:

Yahoo demands probable-cause, court-issued warrants to divulge the content of messages inside its popular consumer e-mail brands — Yahoo and Ymail, the web giant said Friday.

The Sunnyvale, California-based internet concern’s exclusive comments came two days after Google revealed to Wired that it demands probable-cause warrants to turn over consumer content stored in its popular Gmail and cloud-storage Google Drive services — despite the Electronic Communications Privacy Act not always requiring warrants.

“Yes, we require a probable cause warrant for e-mail content,” said Yahoo spokeswoman Lauren Armstrong, in an e-mail interview. “That is more than ECPA requires.”

The nation’s other major consumer-facing e-mail provider — Microsoft — which markets the Hotmail and Outlook brands, declined comment for this story.

In short, Yahoo and Google are granting their customers more privacy than the four corners of the ECPA. There’s been a string of conflicting court opinions on whether warrants are required for data stored on third-party servers longer than 180 days.

Parole search of a car extends where the parolee could keep his stuff. People v. Schmitz, 55 Cal. 4th 909, 149 Cal. Rptr. 3d 640, 288 P.3d 1259 (2012):

This case involves the constitutional limits of a vehicle search based on a passenger’s parole status. Here, an officer, aware that the front seat passenger was on parole, searched the backseat of defendant’s car and recovered drugs and drug paraphernalia from a chips bag and a pair of shoes. Defendant, the driver, sought to suppress that evidence. We conclude that the search was reasonable under the Fourth Amendment to the United States Constitution. We hold that the Constitution permits a search of those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity. Additionally, the officer may search personal property located in those areas if the officer reasonably believes that the parolee owns those items or has the ability to exert control over them.

Court of Appeals reversed. People v. Schmitz, 187 Cal. App. 4th 722, 114 Cal. Rptr. 3d 490 (4th Dist. 2010).

On defense summary judgment in a forfeiture case, the defense has to prove a negative, that the officers did not have “a reasonable belief that the property had or would have a substantial connection with illegal activity.” Grant of summary judgment reversed. State v. Ninety Thousand Two Hundred Thirty-five Dollars and No Cents in United States Currency ($90,235), 11-0642 (Tex. January 25, 2013).* This is the gobbledygook of the month:

Bueno’s only summary judgment evidence was his affidavit. We need not address the affidavit’s weight in light of Bueno’s status as an interested witness, because his affidavit was insufficient to support summary judgment regardless of his status. See Tex. R. Civ. P. 166a(c) (stating the specific requirements for when summary judgment may be based on the uncontroverted testimonial evidence of an interested witness). The affidavit states, as relevant to any connection between the seized property and illegal drug dealing activities, that (1) the vehicle and money were “acquired legally and lawfully”; and (2) the money represented a partial payment from the sale of his ranch. But the affidavit wholly fails to address whether the officers had a reasonable belief that the property had or would have a substantial connection with illegal activity as pleaded by the State—even assuming Bueno could address what the officers believed and whether their beliefs were reasonable. The affidavit certainly does not conclusively prove that none of them did. And until Bueno conclusively established that none of them had such a belief, the trial court could not have properly granted summary judgment on Bueno’s second ground. The court of appeals erred by holding otherwise.

h/t Americans for Forfeiture Reform

You never know where you can finding sufficient evidence of standing: Here, the CI’s statement to the police showed the defendant had standing. Then defense counsel undermined it in a 404(b) pleading admitting no privacy interest in the premises. United States v. Stanton, 2013 U.S. Dist. LEXIS 8983 (W.D. Pa. January 22, 2013)*:

On the other hand, Officer Wilner’s communications with CI support the conclusion that Defendant had an expectation of privacy in 310 Broadway. Officer Wilner testified that CI had seen Defendant at the residence “more than once.” (Tr. at 25-26). Although CI reported that Defendant was dealing narcotics out of the residence, (Tr. at 41), Officer Wilner also testified that CI told him that “[Defendant] was staying there.” (Tr. at 57, 60). Although no addressed mail, clothing or witness testimony was produced relating to Defendant’s status, the evidence does show that Defendant had been staying at the residence for some time. Defendant had not been located at his other listed residences by his probation officer, and CI had seen Defendant multiple times at the residence, stating that he had been staying there. Accordingly, based on the present record, it appears that Defendant was more than just a “short-term guest” and had an expectation of privacy in 310 Broadway. Therefore, he has established standing to challenge the evidence resulting from the September 9, 2010 search of 310 Broadway Avenue.9

9 The Court does recognize defense counsel’s argument that 310 Broadway is “a residence to which the Defendant did not even have a privacy interest” in her supplemental brief addressing Rule 404(b) issues. (Docket No. 91, Supplemental Brief to Defendant’s Motion to Produce Evidence that the Government Intends to use Under Federal Rules of Evidence 404(b) and 609 and Motion to Sever). If Defendant maintains this statement, then he would lack standing to challenge the evidence found during the September 9, 2010 search of 310 Broadway Avenue. Because the Court concludes there was no Fourth Amendment violation, there is no need to further address the legal effect of Defendant’s statement.

ArsTechnica: Google stands up for Gmail users, requires cops to get a warrant | As e-mail privacy laws stall in Congress, Google pushes for stronger standard by Cyrus Farivar:

The United States remains far ahead of all governments who request user information from Google, according to the company’s latest Transparency Report (July through December 2012) which was released on Wednesday.

American government agencies (including federal, state, and local authorities) made over 8,400 requests for nearly 15,000 accounts—far exceeding India, the next largest country in terms of information requests. In 88 percent of those queries, Google complied with at least some, if not all, of the requests.

For the first time, the search giant is also breaking down the type of legal requests that were made.

Google said that 22 percent of those requests were made under probable cause driven search warrants delivered via the Electronic Communications Privacy Act (ECPA). Authorities have also been known to request information using ECPA subpoenas, which are much easier to obtain. It’s unclear how many of the subpoenas or warrants Google complied with—the company has only said it complied in part or in full to 88 percent of total requests from American authorities.

“In order to compel us to produce content in Gmail we require an ECPA search warrant,” said Chris Gaither, Google spokesperson. “If they come for registration information, that’s one thing, but if they ask for content of e-mail, that’s another thing.”

GooglePublicPolicy.blogspot: Transparency Report: What it takes for governments to access personal information by Richard Salgado, Legal Director, Law Enforcement and Information Security

The numbers:

•68 percent of the requests Google received from government entities in the U.S. were through subpoenas. These are requests for user-identifying information, issued under the Electronic Communications Privacy Act (“ECPA”), and are the easiest to get because they typically don’t involve judges.
•22 percent were through ECPA search warrants. These are, generally speaking, orders issued by judges under ECPA, based on a demonstration of “probable cause” to believe that certain information related to a crime is presently in the place to be searched.
•The remaining 10 percent were mostly court orders issued under ECPA by judges or other processes that are difficult to categorize.

http://googlepublicpolicy.blogspot.com/2013/01/transparency-report-what-it-takes-for.html

It is settled, as of now at least because the issue is in SCOTUS, that a drug dog alert is probable cause. United States v. Salgado, 2013 U.S. Dist. LEXIS 8808 (D. S.D. January 17, 2013).* [Note: This long discussion of what a drug dog does and why, including accuracy, seems almost like a prelude to imposing Davis-type good faith on drug dogs if SCOTUS reverses in its current cases.]

Officers had knowledge of a small drug sale by defendant, and that was probable cause to stop him. United States v. Elliott, 2013 U.S. Dist. LEXIS 8829 (E.D. Mich. January 23, 2013).*

Defendant consented to a search while on state parole. He was a fugitive from supervision, and officers were looking for him. When he was found, he’d put a gym bag in a car. The gym bag was properly searched. United States v. White, 2013 U.S. Dist. LEXIS 9122 (S.D. Ill. January 23, 2013).*

There was clearly probable cause for the automobile exception in this case, and defense counsel was not deficient for not filing a motion to suppress on what would be a frivolous ground. Marin-Vega v. United States, 2013 U.S. Dist. LEXIS 8593 (M.D. Fla. January 22, 2013).*

Defendant was handcuffed and in a police interrogation room when he asked to talk to his family alone. Police let him, but the recording was still being made. There was no reasonable expectation of privacy in the police interrogation room merely from the intimate family conversation. The police did nothing to make defendant think there was any privacy other than letting them in without a chaperone. Georgia already held that conversations in the back of a police car have no reasonable expectation of privacy. Rashid v. State, 2013 Ga. LEXIS 63 (January 22, 2013).

Plaintiff is a Texas DOC employee whose underwire bra set off the metal detector entering the prison for work. Her partial strip search was justified by reasonable suspicion of possession of a cell phone or other metal object. The Fifth Circuit adopts the majority rule that reasonable suspicion is required for a search of a prison employee, and all Texas prisons are on guard for smuggling of cell phones into prison which is contraband. Rouse v. Tex. Dep’t of Crim. Justice Institutional Div., 479 Fed. Appx. 612 (5th Cir. 2012):

First, we agree with the district court that the prison officials were required to have reasonable suspicion that appellant was carrying contraband in order to justify the partial strip search of the plaintiff. Where visitors to the prison will be exposed to prison inmates, we have stated that “[t]o justify the stip search of a particular visitor under the reasonable suspicion standard, prison officials must point to specific objective facts and rational inferences that they are entitled to draw from those facts in light of their experience.” Thorne v. Jones, 765 F.2d 1270, 1277 (5th Cir. 1985). The standard requires “individualized suspicion” specifically directed to the person who is targeted for the strip search. Varrone v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997). At least three circuits have held that reasonable suspicion is the appropriate standard for the partial strip search of prison staff. Leverette v. Bell, 247 F.3d 160 (4th Cir. 2001); McDonnell v. Hunter, 809 F.2d 1302 (8th Cir. 1987); Security and Law Enforcement Employees, District Council 82 v. Carey, 737 F.2d 187 (2d Cir. 1984). The appellant does not challenge the district court’s conclusion that this is the appropriate legal standard.

We also agree that when appellant triggered the metal detectors, the prison officials had reasonable suspicion and were entitled to conduct the partial strip search. Under the facts recited above, the prison officials had the “individualized suspicion” of appellant to justify the partial strip search. …

NYLJ: Judge Stays Decision Halting Suspicionless Trespass Stops by Mark Hamblett:

A federal judge has stayed, pending appeal, her ruling directing the New York City Police Department to halt suspicionless stops for trespass of people at Bronx buildings whose owners have enlisted in a patrol program. Southern District Judge Shira Scheindlin (See Profile) on Jan. 8 held in the putative class action Ligon v. City of New York, 12 civ. 2274, that officers are violating the Fourth Amendment rights of residents and visitors in buildings that take part in the NYPD’s Trespass Affidavit Program (NYLJ Jan. 9). She issued an injunction against the practice but postponed ordering relief, deciding instead to consolidate consideration of relief pending a March trial in a class action alleging widespread violations of the Fourth Amendment in stop-and-frisk policies on city streets in Floyd v. City of New York, 08 Civ. 1034.

Law.com, Fulton Daily Report: City pushes back on suit over public strip search by R. Robin McDonald:

The city of Atlanta has paid more than $750,000 in damages to eight people who since 2007 have been subjected by Atlanta police to public body cavity and strip searches on city streets.

But the city is pushing back against a ninth complaint—a federal suit by a city worker who claims as many as five officers with the police department’s disbanded Red Dog unit stopped him without cause on a city street in Atlanta’s West End three years ago, yanked down his pants, and groped his genitals in a fruitless search for illegal drugs. …

But attorneys for Ricky Sampson, who works for the Atlanta Department of Watershed Management, argue that Sampson is just one more victim of heavy-handed, and often unconstitutional, tactics that city police have employed for years and that have shown little sign of abating despite a string of lawsuits that have successfully challenged humiliating police searches of civilians on city streets and other public venues.

CNET.com: Foil face-recognition cameras with Privacy Visor by Tim Hornyak:

These dorky goggles shine near-infrared light to confuse computer vision systems. Are they the shades of the future?

Worried about all those security cameras tracking your every move? Try rocking one of these visors and enjoy anonymity once again.

At least that’s what Isao Echizen from Japan’s National Institute of Informatics is trying to achieve with the Privacy Visor (PDF).

Developed with Seiichi Gohshi of Kogakuin University, the visor has a near-infrared light source that messes up cameras but doesn’t affect the wearer’s vision, according to the institute.

Defendant had four guns seized by ATF. His criminal case was pending, but one count was dismissed without prejudice. A civil forfeiture action was filed, too. He filed a Rule 41(g) motion for return of property. The pending civil forfeiture requires him to pursue it there, not in the criminal case. Alternatively, the ATF agent’s affidavit shows the government still might need it for the dismissed count. United States v. Robinson, 2013 U.S. Dist. LEXIS 7887 (S.D. Ohio January 17, 2013).

The officer had reasonable suspicion besides from defendant’s refusal to consent to one of two items in his possession, his backpack. A dog was called and alerted on has backpack, and that was probable cause. United States v. Morrison, 2013 U.S. Dist. LEXIS 7663 (D. Kan. January 18, 2013).*

A CI told the police there was a brick of cocaine in defendant’s house, and police decided to do a knock-and-talk because it was at risk of leaving the premises if they waited much longer. The court finds, despite defendant’s claim of limited language skills in English, that he consented to a search and knew what he was doing when he consented. United States v. Garcia, 2013 U.S. Dist. LEXIS 6946 (E.D. Tenn. January 11, 2013).*

On remand from the Sixth Circuit, GPS usage was not a Fourth Amendment violation in the Sixth Circuit at the time it was used here. The Sixth Circuit beeper cases show that there would be no Fourth Amendment violation. Therefore, under Davis, the installation of the GPS on defendant’s car was subject to the good faith exception despite Jones. United States v. Fisher, 2012 U.S. Dist. LEXIS 184855 (W.D. Mich. December 12, 2012) (R&R).*

The government raised three alternatives to support the search: automobile exception with probable cause, search incident (although defendant was handcuffed and in a police car), and a protective weapons search under Long. There was probable cause, so the automobile exception applies. United States v. Towns, 2013 U.S. Dist. LEXIS 8069 (D. R.I. January 18, 2013).*

One member of a drug trafficking operation was admittedly just a warehouse worker where the drugs were kept, and the court finds that his connection to the property was not enough to have a reasonable expectation of privacy in the warehouse to have standing. Alternative, the search warrant was issued with probable cause. United States v. Filippi, 2013 U.S. Dist. LEXIS 7850 (S.D. N.Y. January 16, 2013):

In an attempt to make the necessary showing, Burke submitted a declaration stating that he “was employed at, and did work in [the Warehouse] … during the time periods mentioned.” (Burke Decl. ¶ 5.) Such employment, he asserts, “consisted of janitorial type work, including the removal of refuse that had been left in the premises,” including “lumber, wire cable, broken or unused electrical and lighting equipment, and small plastic bags of garbage.” (Burke Decl. ¶¶ 6-7.)

Under the framework set forth above, Burke’s averments are clearly insufficient to establish standing. Burke’s responsibilities at the premises, as he describes them, ring of occasional or sporadic, rather than continuous, use.8 He claims no ownership interest in the Warehouse and makes no representation that he exercised exclusive use or control over any specific area; indeed, he mentions no area other than the premises themselves. As such, Burke’s suppression motion may be denied on this basis alone.

When the officer asked for consent, the defendant’s walking to the back hatch and opening it was consent. State v. Pickle, 253 Ore. App. 235, 288 P.3d 1039 (2012).

Search was not shown by state to be attenuated from unlawful stop. State v. Knapp, 253 Ore. App. 151, 290 P.3d 816 (2012).*

Where defendant was arrested for criminal trespass and that led to a search incident, the state had to show the trespass. Here, it didn’t, so the search incident fails. State v. Musser, 253 Ore. App. 178, 289 P.3d 340 (2012).*

A suppression hearing judge sits like an appellate judge in determining the adequacy of the showing of probable cause. The suppression judge improperly second guessed the probable cause here, and the suppression order is reversed. State v. Johnson, __ Md. App. __, 56 A.3d 830 (2012) (Moylan, J.):

What A Reviewing Judge Must Not Do:

Determine Probable Cause De Novo

[Query: Isn’t that exactly what appellate courts do under Ornelas? Come on; you’re going too far in your rhetoric.]

What A Reviewing Judge Should Do: Be Content With A Substantial Basis

In Fitzgerald v. State, 153 Md. App. 601, 627, 837 A.2d 989 (2003), aff’d, 384 Md. 484, 864 A.2d 1006 (2004), this Court switched to affirmative terms to praise a suppression hearing judge for doing what a reviewing judge should do:

Once again [the suppression hearing judge] commendably recognized the constraints on her reviewing role. She did not presume to find probable cause. That was not her job. What she found was that [the warrant-issuing judge] had had a “substantial basis” for finding probable cause. That was her job. .

The relatively lower hurdle that must be cleared by an application for a search warrant is that it must provide a “substantial basis” for the issuance of the warrant. Illinois v. Gates described that lower hurdle, 462 U.S. at 236: …

. . .

“Substantial Basis” Is Less Than “Probable Cause”

Terms such as “substantial basis” and “probable cause” can be, however, frustratingly slippery. The one thing we can be certain about is their relative weight when compared with each other. A substantial basis is less weighty and less logically probative than probable cause. A tightly reasoned examination, for instance, might reveal a subtle logical flaw in the posited probable cause, but the substantial basis test would not subject the warrant application to so rigorous an analysis. The preference for the warrant and the resulting presumptive validity of the warrant will be able to cover over flaws that might be more compromising if one were examining probable cause in a warrantless setting. Fine points in the arguable nexus between the street criminality of the suspect and the police entitlement to search his home for evidence might well constitute such a case wherein the relative intensities of the examinations might produce very different conclusions. What we know for certain is that some warrant applications will past muster under the lesser test that would not pass muster under the more demanding test.

. . .

A Prima Facie Case Is Not Required

A grand jury subpoena to display tattoos for photographing is subject to the reasonableness requirement, and here was shown to be reasonable. United States v. Meregildo, 876 F. Supp. 2d 445 (S.D. N.Y. July 6, 2012), R&R adopted 2012 U.S. Dist. LEXIS 115085 (S.D. N.Y. August 10, 2012):

The Second Circuit has also suggested that displaying one’s body in this manner implicates the Fourth Amendment. In dicta, the Court of Appeals cautioned that “perhaps,… a demand for the display of identifying characteristics such as scars or birthmarks on parts of the body not normally exposed” may be a Fourth Amendment “search.” United States v. Doe, 457 F.2d 895, 898 (2d Cir. 1972). This Court agrees that compelling a person to display his or her arms, legs, and torso is a Fourth Amendment search.

. . .

A grand jury subpoena is not a warrant and is subject only to the reasonableness requirement of the Fourth Amendment. See Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 208-209 (1946) (holding that the Fourth Amendment requires that disclosures sought by a subpoena be reasonable); see also United States v. Miller, 425 U.S. 435, 445 n.8 (1976) (“A subpoena duces tecum issued to obtain records is subject to no more stringent Fourth Amendment requirements than is the ordinary subpoena. A search warrant, in contrast, is issuable only pursuant to prior judicial approval and authorizes Government officers to seize evidence without requiring enforcement through the courts.” (internal citations omitted)).

An American DEA officer in Aruba working on a drug investigation ultimately indicted in Puerto Rico was not on a joint venture with Aruba. The Aruba investigation was underway before he got there, and they got the wiretap on their own without U.S. participation and then excluded the DEA officer from having anything to do with it while it was conducted. United States v. Valdivia, 680 F.3d 33 (1st Cir. 2012).

Officer’s knowledge of an arrest warrant for person is reason for a stop. United States v. Nelson, 483 Fed. Appx. 677 (3d Cir. 2012).*

The stop of the car here was justified because of a license plate light being out, even though there was a temporary paper tag in the rear window. Once an arrest was made of the driver, it was proper to impound and inventory the car at 4:30 am, and there is no constitutional requirement to impose lesser intrusive measures on the police to find the unidentified and unregistered alleged owner. United States v. Cubillos, 2012 U.S. Dist. LEXIS 68984 (N.D. Ga. March 20, 2012).*

When doing a knock-and-talk, officers smelled ammonia and this was probable cause of meth production and exigency. “The existence of ammonia has been recognized as constituting exigent circumstances due to its explosive nature.” State v. Cortez, 98 So. 3d 382 (La. App. 5 Cir. 2012).*

Defendant was Mirandized and signed a consent form when the officers talked in a conversational tone, so the record supports the conclusion that the consent was voluntary. United States v. Ortiz, 483 Fed. Appx. 712 (3d Cir. 2012).*

The affidavit for the search warrant showed probable cause. In executing warrant, officers were found to have knock-and-announced. The trial court credited the officers rather than somebody inside. The doors were not locked. State v. McDivitt, 2012 Ohio 2243, 2012 Ohio App. LEXIS 1980 (11th Dist. May 21, 2012).*

Officers responding to a 911 call saw a person on a child’s toy scooter and stopped him thinking that he was a juvenile out after curfew. When stopped, defendant was shocked to see the officer and highly nervous and shaking. That was reasonable suspicion and then he consented to a search of his person. Mwangi v. State, 316 Ga. App. 52, 728 S.E.2d 729 (2012).*

Government failed to prove its theory of protective sweep. It’s argument essentially put the burden on the defendant to prove that the protective sweep was unjustified, and that’s wrong. Also, the government’s waiver of an opportunity to put on additional proof of exigency before the Magistrate Judge is binding on remand–no new hearing for it. United States v. Delgado, 701 F.3d 1161 (7th Cir. 2012):

For the government’s theory to be reasonable under these circumstances, one would have to believe that the shooter (lethally armed and bent on killing Aviles), Delgado (potentially lethally armed and bent on protecting Aviles), and Aviles rushed into the sole-occupant apartment and were poised for a fatal showdown, but that the officers happened to knock on Delgado’s door at the precise climactic moment before anyone could pull a trigger or throw a punch, causing the parties to immediately suspend all hostilities while the shooter scrambled into a hiding position and Aviles and Delgado left acting as if nothing had happened. The presumption of unconstitutionality that attaches to warrantless searches requires the government to point to something that would lead a reasonable officer to think that this improbable scenario actually transpired, but the government simply has not done so.

The government argues that Aviles’s and Delgado’s silence when they came out of the apartment does not mean that the shooter was not in the apartment, because victims of violence sometimes choose to remain silent to prevent an investigation into their own criminal activity or to prevent their wounded foe from receiving aid. But this argument erroneously suggests that the defendant carries the burden of proving a lack of exigent circumstances, when it is actually incumbent upon the government to point to some affirmative sign of exigency. Silence in this context cannot be that sign, as it could have easily meant any number of things having nothing to do with exigent circumstances. Cf., e.g., Ellis, 499 F.3d at 691 (finding no exigent circumstances because general movement noises in response to officer’s knocking do not automatically mean that evidence is about to be destroyed, when they could simply signal someone getting up to answer the door). The government notes that in other cases, police officers have validly entered homes without a warrant upon suspicion of domestic violence even when the victim remains silent upon answering the door, but in those cases, silence or an indication that everything was fine was not in and of itself an affirmative indication of exigent circumstances. The victim’s silence simply failed to vitiate other affirmative indications that something dangerous was happening inside the home. … Absent such other affirmative indications here, Aviles’s and Delgado’s silence adds nothing to the exigent circumstances equation.

The government’s failure to carry its burden compels us to find that the officers violated Delgado’s Fourth Amendment rights when conducting a warrantless search of his apartment. So we reverse the denial of Delgado’s suppression motion, vacate his conviction, and remand for additional proceedings consistent with this decision. In remanding, we also instruct the district court to grant Delgado’s suppression motion. After the magistrate judge found a lack of exigent circumstances based on a set of stipulated facts, the government could have asked the district court to supplement the record and could have requested an evidentiary hearing. See 28 U.S.C. § 636(b)(1); Hynes v. Squillace, 143 F.3d 653, 656 (7th Cir. 1998); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995). It did not. Though the government has not suggested that it is now entitled to an evidentiary hearing at this late stage, our instructions to grant the suppression motion do not include providing an evidentiary hearing. It is too late for that.