Houston Chronicle: Email not in the Fourth Amendment | Outdated privacy regulations let law enforcement spy via Internet companies and social networks by Caleb Garling:

Outdated digital privacy regulations are increasingly allowing law enforcement agencies to use Internet companies and popular social networks to do their spying.

The Fourth Amendment protects against unreasonable search and seizure of private citizens and their “persons, houses, papers, and effects” – but obviously makes no mention of email in a remote server. In 1986, Congress passed a law regulating how law enforcement can access information stored and communicated electronically. That was years before the Internet became a household term and before email was commonplace.

The law, known as the Electronic Communications Privacy Act, updated the 1968 Federal Wiretap Act. Now, as the Senate considers amending the privacy act to make law enforcement more accountable to the courts, Internet providers and service companies find themselves as awkward middlemen between the government and Web users.

How is email not an “effect”? It is, but there are too many other Fourth Amendment problems lurking.

Defendant was subjected to an “incredibly brief” Terry stop to determine if he was armed in a high crime area known for guns. At the time defendant was arrested, the gun was visible inside the car with the doors closed, which made it not subject to search incident. It was, however, subject to plain view. United States v. Brown, 2012 U.S. Dist. LEXIS 167017 (W.D. Pa. November 26, 2012).*

Police had a warrant to search a residence, and they didn’t need a separate search warrant to search one room of it. Defense counsel thus can’t be ineffective. Ables v. United States, 2012 U.S. Dist. LEXIS 167211 (S.D. Ohio November 26, 2012).*

Plaintiff’s Bivens claim against FCI Fort Dix had to go through PLRA exhaustion, which is explained in detail. Brown v. United States, 2012 U.S. Dist. LEXIS 167085 (D. N.J. November 15, 2012).*

Just writing down a detainee’s name and DOB does not mean he is not free to leave. Further, being required to assume the position for a search adds nothing to it when the defendant is told he is free to leave after that. State v. Canfield, 251 Ore. App. 442, 283 P.3d 438 (2012).* Update: Reversed: Defendant’s consent came during the unlawful stop, not after, so reconsideration of the prior opinion is granted and the judgment reversed. State v. Canfield, 251 Ore. App. 442, 283 P3d 438 (2012), reversed. State v. Canfield, 2012 Ore. App. LEXIS 1344 (November 21, 2012).

The Portland inventory policy required that inventories occur before the defendant is placed in the police car, but here was after, so inventory doesn’t work. Here, a laptop bag was unreasonably searched under the state constitution. Still, the court is required to determine whether suppression is warranted, and it is [although not a Herring inquiry]. State v. Rowell, 251 Ore. App. 463, 283 P.3d 454 (2012).*

The government got tracking information for defendant’s Sprint cell phone to locate him to arrest him for a bank robbery in 2009. His defense counsel could not be ineffective for not moving to suppress it because it was a novel claim at the time. And, even if it wasn’t, the court can’t see how it would change the result. United States v. Reaves, 2012 U.S. Dist. LEXIS 107278 (D. Neb. August 1, 2012).*

Foundation Economic Education: The Fourth Amendment and Faulty Originalism by Joseph R. Stromberg:

“All arrests are at the peril of the party making them.”
—Alexander H. Stephens, August 27, 1863

These days the Fourth Amendment to the Constitution means next to nothing. Consider, for example, the choice offered a few years ago: surveillance under routine, easy “warrants” from the drive-through FISA Court or warrantless surveillance at the whim of George W. Bush and his allegedly boundless reserve of unitary-executive authority. A January 2006 Justice Department memo (“Legal Authorities Supporting the Activities of the National Security Agency …”) explained the executive’s claims in mind-numbing and unconvincing detail. But the memo at least suggested how far below any practical service to Americans’ liberty the Fourth Amendment has fallen, and did so by heaping up available (and rather bad) search-and-seizure precedents, many of which arose from the terminally futile war on drugs (pages 37–38). The result is something like “your Constitution on drugs”—with the searchers and seizers on steroids.

Turning to the Fourth Amendment itself, we read: …

This sounds pretty good, doesn’t it? And solid, like it might actually mean something. Alas, no such utopian state of affairs actually obtains. It is possible of course that my elementary school teachers just plain lied to us when they spun golden tales about American freedoms.

Yet surely there is more to it. But if so, what doom befell the Fourth Amendment? We might try looking at various eventful periods when governments—state and federal—felt unusually strong needs to arrest, search, and seize, such as the Civil War, Reconstruction, World War I, Prohibition (see Lacey, in works consulted below), World War II, the Cold War, and (naturally) the war on drugs. It seems, however, that long-running negligence, evasion, and misinterpretation have done more harm to the Fourth Amendment than have various short-run authoritarian panics. Central to this slow but continuous process was the rise of modern policing in the nineteenth century, creating a new institution not foreseen in American constitutions (state or federal) and therefore largely incompatible with them and unaddressed by them (see Roots).

The juvenile had an 1″ thick wad of cash on him visible to a teacher, and he was talking to other students about selling something. While having a large amount of cash doesn’t violate school policy, it does create potential problems. That was reasonable suspicion for a search. Marijuana was found. The search was valid under T.L.O. State v. M.W., 2012 Del. Fam. Ct. LEXIS 70 (October 9, 2012).*

The search of defendant’s place was with valid third party consent. Motion to reconsider denied. United States v. Utley, 2012 U.S. Dist. LEXIS 166248 (E.D. Mich. November 21, 2012).*

Defendant was indicted in a RICO murder case, and the FBI went to arrest. They had a forfeiture warrant for her car, and they seized and searched it using inventory as a justification. The inventory was valid. United States v. Savage, 2012 U.S. Dist. LEXIS 166010 (E.D. Pa. November 20, 2012).*

Officers were doing a knock and talk and got no answer. One of them decided to look into the backyard by going to the driveway to get a better view seeing potted plants he suspected were marijuana. They got a search warrant and came back. The appellate court rejects that this is a plain view. The state has been clear before that the backyard is curtilage. State v. Grice, 2012 N.C. App. LEXIS 1316 (November 20, 2012):

In this case, we decline to adopt the State’s argument that the initiation of a valid “knock and talk” inquiry gave Detectives Guseman and Allen a lawful right of access to walk across Defendant’s backyard in order to seize the plants. If we were to adopt such an approach, it would be difficult to articulate a limiting principle such that “knock and talk” investigations would not become a pretense to seize any property within the home’s curtilage, so long as that property otherwise satisfied the remaining prerequisites for seizure under the plain view doctrine. As this Court has observed, “[t]he implication that police officers have the right to seize any item which comes into their plain view at a place they have a right to be is fraught with danger and would sanction the very intrusions into the lives of private citizens against which the Fourth Amendment was intended to protect.” State v. Bembery, 33 N.C. App. 31, 33, 234 S.E.2d 33, 35, disc. review denied, 293 N.C. 160, 236 S.E.2d 704 (1977). Accordingly, we hold the trial court erred in its conclusion that no Fourth Amendment violation resulted from the seizure in light of the fact “Detective Allen visually observed what he believed to be marijuana plants in plain view.”

In the alternative, the State argues that since the trial court found the detectives’ seizure of the plants “was to prevent their destruction,” that the seizure was valid under the “exigent circumstances” exception to the warrant requirement. We disagree, because no evidence was presented at trial to support the trial court’s finding to that effect.

Driving in a high crime area, eye contact with officer, and furtive movement like toward a gun was reasonable suspicion. State v. Norfolk, 366 S.W.3d 528 (Mo. 2012).*

The district court’s verdict in a bench trial, inter alia, that subpoenaing records of cell phone calls was reasonable was affirmed on credibility of witnesses. Cunningham v. Terrebonne Parish Consol. Gov’t, 478 Fed. Appx. 230 (5th Cir. 2012).*

“While the fact that Whisnant did not understand he could refuse consent to search is a factor to consider in determining whether consent was voluntary, police do not have to inform an individual of his right to refuse to consent to a search. … Likewise, when requesting an individual’s consent to search a vehicle, police are not required to inform the individual that others could object to the search. Nor are police required to obtain the consent of all the occupants of a vehicle in order to search it. … In this case, the alleged consenter himself testified repeatedly that he consented to the search and never testified that he felt coerced into doing so by the factors cited by Collins or by any other factors. Accordingly, the district court did not clearly err in finding that Whisnant’s consent was valid.” United States v. Collins, 683 F.3d 697, 2012 FED App. 0173P (6th Cir. 2012).*

Brief questioning unrelated to the reason for the stop did not themselves constitute a search or offend Terry. United States v. Griffin, 696 F.3d 1354 (11th Cir. 2012):

So how do cases like Mena and Johnson affect, if at all, the “reasonably related in scope” prong of Terry? This is a matter of first impression for us, but a number of our sister circuits have directly confronted the question, and they have all answered it the same way. See United States v. Digiovanni, 650 F.3d 498, 507 (4th Cir. 2011) (“Both Mena and Johnson make clear that unrelated questioning during an investigative stop … does not run afoul of the scope component of Terry’s second prong.”); United States v. Everett, 601 F.3d 484, 494 n.10 (6th Cir. 2010) (“[Mena] and Johnson … stand for the proposition that mere questioning—on any subject—cannot violate the scope prong of Terry[,]” and “[t]herefore, where Terry’s duration prong is not at issue … the subject of the questioning” is irrelevant); United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007) (Mena overruled cases holding that unrelated questions during a Terry stop must be supported by independent reasonable suspicion); United States v. Alcaraz-Arellano, 441 F.3d 1252, 1258 (10th Cir. 2006) (Mena “limited” the “reasonably related in scope” prong of Terry so that, as long as the unrelated questioning does not extend the length of the detention, “there is no Fourth Amendment issue with respect to the content of the questions”). See also United States v. Childs, 277 F.3d 947, 949 (7th Cir. 2002) (en banc) (“questions that do not increase the length of detention (or that extend it by only a brief time) do not make the custody itself unreasonable or require suppression of evidence found as a result of the answers”). We concur with the Fourth, Sixth, Seventh, Ninth, and Tenth Circuits, and hold—consistent with Mena and Johnson—that unrelated questions posed during a valid Terry stop do not create a Fourth Amendment problem unless they “measurably extend the duration of the stop.” Johnson, 555 U.S. at 333. This is because such questions, absent a prolonged detention, do not constitute a “discrete Fourth Amendment event.” Mena, 544 U.S. at 101.

. . .

To the extent that it believed that Officer Edwards’ questions constituted a search under the Fourth Amendment, the district court was mistaken. Whatever else they might be, questions posed by a police officer to a suspect about what he has in his pocket and whether he has been to prison are not, in the Fourth Amendment sense, a search. “In context, these sorts of questions are not the verbal equivalent of reaching into a suspect’s pockets to remove the contents, or the same as ordering a suspect to ’empty his pockets’ in the midst of a protective frisk.” United States v. Street, 614 F.3d 228, 234 (6th Cir. 2010) (internal citations omitted). See also Childs, 277 F.3d at 954 (“Nor do the questions forcibly invade any privacy interest or extract information without the suspect’s consent.”). “Sometimes a question is just a question—and an eminently reasonable question at that. That is all that happened here.” Street, 614 F.3d at 234.

The District of Arizona at Tucson’s 10:30 am notification rule, not well publicized and not subject to judicial notice, was invalid where the defendant was arrested at 7:30 am ten miles from the courthouse but a Spanish speaking agent could not be located before 10:30. The delay in his arraignment until the next day was unreasonable under McNabb–Malloy. United States v. Valenzuela-Espinoza, 697 F.3d 742 (9th Cir. 2012):

Here, Valenzuela-Espinoza was arrested just ten miles from the courthouse almost three hours before the scheduled arraignment calendar. The delay here was not reasonable “given the means of transportation and the distance to be traveled to the nearest available magistrate.” Corley, 129 S. Ct. at 1571. The 10:30 a.m. notification policy cannot by itself create a reasonable delay. To hold otherwise would stand the McNabb-Mallory rule on its head. It is not the longstanding principle embodied in McNabb-Mallory that must give way to local paperwork needs, but the local paperwork policy that must be tailored to the requirements of McNabb-Mallory, its implementing statute, and rule.

Protective sweep of locked bedroom after consent entry was invalid. Hernandez v. State, 98 So. 3d 702 (Fla. 5th DCA 2012):

Courts that have recognized the validity of protective sweeps not incident to an arrest have generally required the State, at a minimum, to prove the following elements:

1. The police must not have entered (or remained in) the home illegally and their presence within it must have been for a legitimate law enforcement purpose;

2. The protective sweep must have been supported by a reasonable, articulable suspicion that the area to be swept harbored an individual posing a danger to those on the scene;

3. The protective sweep must not have been “a full search” but rather a cursory inspection of those spaces where a person may be found;

4. The protective sweep must have lasted no longer than was necessary to dispel the reasonable suspicion of danger and no longer than the police were justified in remaining on the premises.

Gould, 364 F.3d at 587-88, see also Miller, 430 F.3d at 98-100; State v. Davila, 999 A.2d 1116, 1118-19 (N.J. 2010).

In the instant case, the aforementioned elements were met. However, when the police entry into a house is based on consent, and the consent is limited in scope, additional Fourth Amendment concerns arise that are not present in cases where the initial entry is pursuant to a warrant.

For example, concerns might arise respecting a consent to entry requested for a stated common purpose but actually intended not for that purpose but rather for the purpose of gaining access in order to then make a protective sweep of the entire home for unrelated reasons and thus circumvent the warrant requirement. Concerns of a similar character might also arguably arise where the consent to entry is given expressly or implicitly only as to a limited area but the protective sweep extends clearly beyond that area without anything having developed since entry suggestive of greater or more imminent danger than that initially apparent just prior to entry.

Gould, 364 F.3d at 589.

Officer had a reasonable belief at the time he entered a house to investigate an allegation of sex with a child that the mother was in control of the house and she had apparent authority to consent. When the officer got to an office in the basement, he first saw pornography and a computer, and then saw a utility bill in defendant’s name, so he concluded that defendant was the owner and left the room. At that point, he was informed that the room was “off limits” to the consenter and her family. The belief in common authority and view up to that point was reasonable. State v. Huether, 2010 ND 233, 790 N.W.2d 901 (2010).*

The officer’s direction to defendant to roll down the window of his car was found by the trial court to be a request and not an order. Defendant was on his cell phone and testified that he interpreted it as an order to get off the phone and talk to the officer. The officer also requested defendant to turn down the radio. This was not an order. State v. Steffes, 2010 ND 232, 791 N.W.2d 633 (2010).*

Defense counsel was not ineffective for not raising a state constitutional challenge to a search that was essentially already foreclosed. Jones v. State, 2010 Ark. 470, 2010 Ark. LEXIS 573 (December 2, 2010).*

Defendant was being followed by the police after a CI said he was in defendant’s car when defendant sold crack. Defendant made turns to see if the officer was going to stop him, and finally pulled into a yard and parked. The officer parked behind him and got out to talk to him. Defendant consented to a search of his person, and then got combative. A vial of crack fell to the ground and it was validly seized. Franklin v. State, 2010 Ark. App. 792, 378 S.W.3d 296 (2010).*

Defendant’s consent was involuntary. The crux here was an important telephone call about her future educational goals that the agents told her she couldn’t take unless she consented. She was also pregnant and kneeling while the police were there, and she’d been kicked and told to lie down and she couldn’t. The police were there 40 minutes before they asked for consent. The court finds her credible, as were the officers, and finds that this telephone call was vitally important to her personal long term goals and it was unreasonable pressure on her. She was also separated from her children and she testified that she was threatened with the kids. All things considered, the consent was found coerced, and the independent source doctrine was not sufficient here to overcome the denial of consent just because the officers had probable cause; otherwise the warrant requirement would cease to exist. United States v. Dessart, 2012 U.S. Dist. LEXIS 128911 (E.D. Wis. September 10, 2012).*

Defendant’s cell phone was seized at the time of arrest, and a search warrant was issued for the phone’s contents which were admitted at trial. A motion to suppress wasn’t filed, and the appellate court refuses to consider it on appeal because of clear waiver and no good cause shown for not moving to suppress. United States v. Saucedo, 2012 U.S. App. LEXIS 19062 (11th Cir. September 11, 2012).*

The trial court denied a motion to suppress that was not appealed. Appellate counsel was not ineffective for not appealing the search issue because it wouldn’t have prevailed on appeal. There was reasonable suspicion to search for a weapon. Gray v. State, 378 S.W.3d 376 (Mo. App. 2012).*

Second frisk by another officer was still reasonable because the first was “was hardly comprehensive,” and defendant’s actions strongly indicated he was hiding something. United States v. Roach, 477 Fed. Appx. 993 (4th Cir. 2012):

Roach’s conduct during the stop only heightened the officers’ suspicion that he possessed a weapon. Roach was seen contorting his body, sitting “upright” and “half off the [front passenger’s] seat.” J.A. 74-75. While in that strange posture, he repeatedly thrust both hands behind him toward his pants and waistband area, all the while watching Officer Burnem, who was at the time preoccupied with the driver. Roach persisted in these movements, moreover, even after Officer Kruger opened the back door of the car and ordered Roach to put his hands up. Those movements, consistent with concealing or retrieving a weapon, would have led a reasonably prudent officer to fear for his or her safety. See United States v. Hamlin, 319 F.3d 666, 671-672 (4th Cir. 2003) (defendant’s “repeated attempts to reach toward his groin area gave [the officer] reason to believe that [the defendant] was armed and dangerous”). Meanwhile, the driver’s odd behavior upon being stopped — namely, exiting the vehicle rapidly while leaving the car door ajar — reinforced the officers’ apprehension.

Given these circumstances, Roach appears to concede that Officer Kruger had sufficient justification to perform an initial Terry frisk for the presence of weapons. See Brief of Appellant at 13 (“Officer Kruger may have developed a reasonable suspicion to search Roach”). Roach argues, however, that any authority to frisk him under Terry vanished as soon as Officer Kruger’s patdown uncovered no weapon. In Roach’s view, any subsequent patdown was unlawful because Officer Kruger’s failure to detect a weapon on him allayed any reasonable suspicion.

The perception of danger, however, did not dissipate with Officer Kruger’s frisk. As an initial matter, Roach impeded Officer Kruger’s patdown by defying his instructions. He repeatedly brought his hands and elbows down to his waistband area, sought to remain close to the car, and resisted spreading his feet apart. Those movements indicated that Roach was concerned about something Officer Kruger might find. Indeed, Officer Kruger testified that he was compelled to handcuff Roach during the frisk because Roach’s movements caused him to be concerned “for officer safety.” J.A. 82.

The government got a search warrant with information from a CI in a white collar case. Instead of executing the warrant, the government gathered some more information, resubmitted the information and obtained a second search warrant which was executed. The alleged Franks violation was not material to the second search warrant’s issuance, and there was plenty of probable cause in the first application. United States v. Mandell, 2012 U.S. Dist. LEXIS 60925 (S.D. N.Y. May 1, 2012)* [Note: Any problems with the second warrant likely weren’t sufficient to suppress, but this was an easier resolution of the case.]

Defendant was suspected of possession of drugs, but his driving justified a reasonable suspicion stop for likely possession of drugs. The stop was valid, and there was actually probable cause for the search of the car and search incident for drugs. State v. Watkins, 2012 N.C. App. LEXIS 588 (May 1, 2012).*

The defendants were suspected of possession of stolen property moving in interstate commerce. The government did a fly over and spotted a mini excavator nearby which was never established to be on their property. Officers driving by noticed four trailers and they were suspected of having stolen trailers. Officers got a search warrant to enter the property, and it was valid and with probable cause. In any event, the excavator was on open fields 500′ from their house. United States v. Young, 477 Fed. Appx. 976 (4th Cir. 2012).*

Hawai’i reaffirms it follows the minority view of inevitable discovery and concludes that an unlawful search incident could not be justified as inevitable discovery of a coming jail inventory search of the person because it was speculative that the contraband would have been found then. State v. Rodrigues, 128 Haw. 200, 286 P.3d 809 (2012).

Defendant’s 2255 claim that drugs seized outside his apartment were unlawfully attributed to him fails without a minimal showing of an expectation of privacy in the first place. Beatty v. United States, 2012 U.S. Dist. LEXIS 147967 (D. Mass. October 15, 2012).*

Defendant doesn’t make a “substantial preliminary showing” of falsity for a Franks violation. Even if he could, the rest is still probable cause. United States v. Lopez, 2012 U.S. Dist. LEXIS 148042 (E.D. Ky. September 13, 2012).*

Defendant argued that a search warrant for defendant’s car for forensic evidence in a sexual assault case was stale and “speculation.” The officer testified at the suppression hearing that a forensic expert told him that evidence could still be found, so he got the search warrant, and that was enough to show it was not stale. United States v. Brown Thunder, 2012 U.S. Dist. LEXIS 164934 (D. S.D. November 19, 2012):

Agent Lakey’s factual allegations that A.C. placed H.C. in Brown Thunder’s car shortly before A.C. saw Brown Thunder drive away, that H.C. then suffered a serious injury by a penetration of her vaginal wall, and that Lakey checked with FBI forensic specialists who told her that forensic evidence could be discoverable a year after a sexual assault created a “fair probability that evidence of a crime will be found” in Brown Thunder’s vehicle at the time the warrant issued. Accordingly, this Court adopts the Report and Recommendation.

Defendant whose girlfriend’s father bought car for her had standing to challenge the search of it when he was driving it. Under the LVMPD policy, there was a question for the police whether defendant was driving with permission of the owner, and that made the inventory reasonable. The car was stopped in a parking lot of a 24 hour bar. Here, though, the police had already inventoried the car, and then made the decision to call off the tow and impound because the owner was found, and he said he’d come and get the car. The impoundment was not pretextual and was reasonable under LVMPD policy. United States v. Poblete, 2012 U.S. Dist. LEXIS 165527 (D. Nev. October 31, 2012).*

A CI called probation to report that defendant was in possession of drugs. Police corroborated that, and a police officer and probation officer went to defendant’s house to conduct a search. When they arrived, defendant fled into the house, and that was reasonable suspicion for the officers’ entry into the house. A protective sweep was then possible [but hardly necessary at that point]. Evans v. State, 2012 Ga. App. LEXIS 979 (November 20, 2012).*

Fourth Amendment — Strip Searches of Prisoners: Florence v. Board of Chosen Freeholders, 126 Harv. L. Rev. 206 (2012) | DOWNLOAD PDF

Fourth Amendment — Search and GPS Surveillance: United States v. Jones, 126 Harv. L. Rev. 226 (2012) | DOWNLOAD PDF

CNET: Senate bill rewrite lets feds read your e-mail without warrants by Declan McCullagh:

Proposed law scheduled for a vote next week originally increased Americans’ e-mail privacy. Then law enforcement complained. Now it increases government access to e-mail and other digital files.

A Senate proposal touted as protecting Americans’ e-mail privacy has been quietly rewritten, giving government agencies more surveillance power than they possess under current law.

CNET has learned that Patrick Leahy, the influential Democratic chairman of the Senate Judiciary committee, has dramatically reshaped his legislation in response to law enforcement concerns. A vote on his bill, which now authorizes warrantless access to Americans’ e-mail, is scheduled for next week.

Leahy’s rewritten bill would allow more than 22 agencies — including the Securities and Exchange Commission and the Federal Communications Commission — to access Americans’ e-mail, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant. It also would give the FBI and Homeland Security more authority, in some circumstances, to gain full access to Internet accounts without notifying either the owner or a judge.

It’s an abrupt departure from Leahy’s earlier approach, which required police to obtain a search warrant backed by probable cause before they could read the contents of e-mail or other communications. The Vermont Democrat boasted last year that his bill “provides enhanced privacy protections for American consumers by… requiring that the government obtain a search warrant.”

Revised bill highlights

✭ Grants warrantless access to Americans’ electronic correspondence to over 22 federal agencies. Only a subpoena is required, not a search warrant signed by a judge based on probable cause.

✭ Permits state and local law enforcement to warrantlessly access Americans’ correspondence stored on systems not offered “to the public,” including university networks.

✭ Authorizes any law enforcement agency to access accounts without a warrant — or subsequent court review — if they claim “emergency” situations exist.

✭ Says providers “shall notify” law enforcement in advance of any plans to tell their customers that they’ve been the target of a warrant, order, or subpoena.

✭ Delays notification of customers whose accounts have been accessed from 3 days to “10 business days.” This notification can be postponed by up to 360 days.

UPDATE: Leahy scuttles his warrantless e-mail surveillance bill.