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An email read and kept on the email server is no longer in “electronic storage” for SCA purposes (splitting with the Ninth Circuit). Jennings v. Jennings, No. 27177 (S.C. October 10, 2012) (2-2-1):

The court of appeals agreed with Jennings and held the e-mails were in “electronic storage” because they were stored for backup protection pursuant to subsection (B). Broome argues this conclusion was based upon an improper interpretation of section 2510(17), asserting that the definition of “electronic storage” within the SCA requires that it must be both temporary and intermediate storage incident to transmission of the communication and storage for the purposes of backup protection. She therefore contends that an e-mail must meet both subsection (A) and subsection (B) to be covered by the SCA. We acknowledge that this reading is the interpretation espoused by the Department of Justice as the “traditional interpretation” of section 2510(17). However, it has been rejected by the majority of courts in favor of a construction that an e-mail can be in electronic storage if it meets either (A) or (B). See, e.g., Theofel v. Farey-Jones, 359 F.3d 1066, 1075 (9th Cir. 2004); …

Because Jennings has only argued his e-mails were in electronic storage pursuant to subsection (B), it is unnecessary for us to determine whether to adopt the traditional interpretation advocated by the Department of Justice or the interpretation recognized by these cases. …

After opening them, Jennings left the single copies of his e-mails on the Yahoo! server and apparently did not download them or save another copy of them in any other location. We decline to hold that retaining an opened e-mail constitutes storing it for backup protection under the Act. The ordinary meaning of the word “backup” is “one that serves as a substitute or support.” Merriam-Webster Dictionary, http://www.merriamwebster.com/dictionary/backup. Thus, Congress’s use of “backup” necessarily presupposes the existence of another copy to which this e-mail would serve as a substitute or support. We see no reason to deviate from the plain, everyday meaning of the word “backup,” and conclude that as the single copy of the communication, Jennings’ e-mails could not have been stored for backup protection.

Accordingly, we find these e-mails were not in electronic storage. We emphasize that although we reject the contention that Broome’s actions give rise to a claim under the SCA, this should in no way be read as condoning her behavior. Instead, we only hold that she is not liable under the SCA because the e-mails in question do not meet the definition of “electronic storage” under the Act.

HT and see Orin Kerr, South Carolina Supreme Court Creates Split With Ninth Circuit on Privacy in Stored E-Mails — and Divides 2-2-1 on the Rationale on Volokh Conspiracy.

Momentary compliance with police with a brief show of hands and then flight is not a Fourth Amendment seizure. Abandoning a shotgun in flight showed a lack of standing. United States v. Stanton, 2012 U.S. Dist. LEXIS 145932 (W.D. Pa. October 10, 2012):

A defendant’s momentary compliance with police directions does not rise to the level of a Fourth Amendment seizure if he “did not submit in any realistic sense to the officers’ show of authority.” Valentine, 232 F.3d at 359; see also United States v. Grant, 459 F. App’x 154, 156 (3d Cir. 2012) (unpublished) (defendant who momentarily raised his hands when police ordered him to “show your hands” for no more than a few seconds before fleeing was not seized); United States v. Samuels, 131 F. App’x 859, 862 (3d Cir. 2005) (unpublished) (defendant who raised one hand in response to officers’ request to raise both his hands did not submit to police authority because he continued to make hand movements toward his waist). In explaining this caveat, the Third Circuit in Valentine cited with approval the D.C. Circuit case, United States v. Washington, which found that the defendant had not yet been seized when he temporarily stopped his car at the curb in response to police commands but sped away when the officer approached on foot. 12 F.3d 1128, 1132 (D.C. Cir. 1994).

A safe in a vehicle that was lawfully impounded and subject to towing and inventory could be forcibly opened at the resting place of the vehicle. United States v. Falsey, 2012 U.S. Dist. LEXIS 145230 (M.D. Fla. October 9, 2012):

Third, the motion to suppress objects that, because the vehicle was towed to the impoundment facility at Joe’s Towing and because the vehicle resided — safe and sound — at Joe’s Towing before the visit by Sgt. Trebino and the three detectives to complete the inventory search (by forcing open the safe in the trunk of the vehicle), the inventory search that revealed the narcotics was entirely unnecessary and outside the permitted purposes of an inventory. However, the applicable law permits the search of a container, package, or compartment within an impounded vehicle if the police department’s regulations require the search, and the Largo police department’s regulations require the search of a container, package, or compartment in an impounded vehicle. Falsey’s argument — that the vehicle was safely situated at Joe’s Towing and that a search of the safe in the trunk was unnecessary — is absolutely wrong. The Largo police department’s regulations govern the inventory search and (wisely) require the inspection of a container, package, or compartment. Whether during the second inventory the police’s failing to search the safe in the trunk of the vehicle would have been an acceptable risk to the police is a superfluous question; if the impoundment was proper, the inventory was proper. 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 7.4(a).

A specific reference to a date is not required in an affidavit for a search warrant as long as the time period showing no staleness can be ascertained from the affidavit as a whole. Here, the affidavit referred to the product of a subpoena just issued, and that was sufficient to show time. State v. Graves, 2012 Tenn. Crim. App. LEXIS 819 (October 4, 2012):

Therefore, in this case, we conclude that the McCormick decision does not support the Defendant’s argument. Additionally, to the extent the Defendant relies upon Welchance and the cases that relied upon it, we conclude that the Tennessee Supreme Court’s analysis of Welchance in Longstreet clarifies that a specific date is not necessarily required in the affidavit, but the proper inquiry is whether the facts contained in the affidavit were stale at the time the affiant applied for a search warrant. We note that the certified question in this case does not encompass the issue of whether the information contained in the affidavit was stale; therefore, any argument to that effect is not properly before this Court for review.

In summary, the affidavit submitted in support of the search warrant in this case described the Defendant, the residence to be searched, the computers and other electronic devices believed to contain illegal material, and provided a time period during which the illegal activity occurred. We note that the trial court found that the affidavit specified that Detective Shanks “issued a subpoena on March 31, ’08, at 1:57,” which established the time period of the illegal activity. The trial court, in examining the four corners of the affidavit, properly found that the affidavit provided probable cause to issue the search warrant. Therefore, we conclude that the trial court did not err in denying the Defendant’s motion to suppress, and we affirm the Defendant’s conviction. The Defendant is not entitled to relief.

“Evidence of a hidden compartment can alone give rise to probable cause to search a vehicle for contraband or arrest the driver of the vehicle.” United States v. Ramirez, 2012 U.S. Dist. LEXIS 142697 (D. Kan. October 2, 2012):

Evidence of a hidden compartment can alone give rise to probable cause to search a vehicle for contraband or arrest the driver of the vehicle. See United States v. Stephenson, 452 F.3d 1173, 1177-78 (10th Cir. 2006). Whether evidence of a hidden compartment can alone create probable cause depends on two factors: (1) the likelihood that there really is a hidden compartment and (2) the likelihood that a vehicle with a hidden compartment would, in the circumstances, be secreting contraband. Id. The first factor can be met when the police officer has training and experience with hidden compartments. Id. at 1177. Furthermore, the Tenth Circuit does not require an officer to verify or confirm conclusively the existence of a hidden compartment before searching or arresting.

NYTimes: Student IDs That Track the Students by Maurice Chammah and Nick Swartsell

SAN ANTONIO — For Tira Starr, an eighth grader at Anson Jones Middle School, the plastic nametag hanging around her neck that she has decorated with a smiley face and a purple bat sticker offers a way to reflect her personal flair. For administrators, it is something else entirely: a device that lets them use radio frequency technology — with scanners tucked behind walls and ceilings — to track her whereabouts.

When is a knock-and-talk not consensual? This one was because it was in the daytime and the officers were not overbearing. United States v. Barrios, 2012 U.S. Dist. LEXIS 144047 (D. Kan. October 4, 2012)*:

Circumstances which may be pertinent include the time of day when the officers knock on the door, the manner in which the officers try to get the occupant’s attention (e.g. whether the officers knock, pound or yell; whether they do so for an extended period of time), whether one or more officers is/are present, whether officers display their authority (e.g. by carrying a weapon or touching the person at the door), the behavior of the officers (e.g. whether officers shine a flashlight into the home, whether officers are persistent in the face of no response) and the language or tone of voice used (whether it conveys that compliance with the officers’ request is compelled). Id. at 1168; see also United States v. Flowers, 336 F.2d 1222 (10th Cir. 2003). If the occupant is compelled to open the door, an encounter on the threshold of a person’s home amounts to a seizure of the occupant. Such seizure requires a warrant unless officers have probable cause to arrest and exigent circumstances exist. Reeves, 524 F.3d at 1169.

CNS.com: Privacy Evaporates in Twitter Cloud, OWS Says by Adam Klasfeld:

MANHATTAN (CN) – The subpoena of an Occupy Wall Street activist’s Twitter account means “your First and Fourth Amendment rights have vanished” in the age of cloud computing, a lawyer claims in a motion to reverse the ruling.

Malcolm Harris, a 23-year-old writer, was among the more than 700 people arrested for disorderly conduct on Oct. 1, 2011, as Occupy Wall Street protesters marched across the Brooklyn Bridge.

Defendant changed his argument on appeal that the prosecutor subpoenaed text messages in violation of the Fourth Amendment. On what the court had, the subpoena appeared reasonable under Walling. Gulley v. State, 2012 Ark. 368, 2012 Ark. LEXIS 393 (October 4, 2012)*:

As the State correctly points out, Gulley has not alleged that the prosecutor in this case abused his subpoena power. Rather, Gulley simply argues that he had an expectation of privacy in his text messages and that the procurement of his text messages without a search warrant violated his right to be secure in his communications. Notably, however, “the search and seizure clause of the [Fourth] Amendment was not intended to interfere with the power of courts to compel, through a subpoena duces tecum, the production, upon a trial in court, of documentary evidence.” Hale v. Henkel, 201 U.S. 43, 73 (1906). In regard to pretrial subpoenas duces tecum, the Fourth Amendment, “if applicable, at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be ‘particularly described,’ …. The gist of the protection is in the requirement … that the disclosure sought shall not be unreasonable.” Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 208 (1946). The Supreme Court of the United States has specifically required only that “the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.” See v. City of Seattle, 387 U.S. 541, 544 (1967); Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984); see also Pollard v. Roberts, 283 F. Supp. 248 (E.D. Ark. 1968) (holding that statute authorizing prosecutor’s subpoena power was constitutional and limited only by reasonableness as articulated in Oklahoma Press Publishing Co. v. Walling).

In the instant case, Gulley made no argument before the trial court-and makes no argument on appeal-that the prosecutor abused the subpoena power. …

Law.com: Hacker Case Could Test Limits on Electronic Searches by Vanessa Blum:

SAN FRANCISCO — More than a year after federal agents arrested 14 people accused in a cyberattack on PayPal, the high-profile prosecution has ground to a standstill over the handling of computers seized in the investigation.

Searches carried out in a dozen states targeted computers, hard drives and other digital devices, resulting in an avalanche of electronic material for investigators to sift through.

But intermingled with potential evidence of a crime were millions of irrelevant files, like emails, photographs, medical records, downloaded articles, Internet search histories and old tax returns.

Just how far prosecutors must go to segregate and purge such extraneous material is a question that could derail the federal hacking case and test the limits judges place on electronic searches.

Reason.com: Warrantless Spying Skyrockets Under Obama, And the news is being met with the equivalent of crickets chirping by A. Barton Hinkle:

Is it fascism yet?

That was the snarky question glued to the bumper of every self-respecting progressive’s gas/electric hybrid back during the Bush-Cheney administration. It now must be asked again.

Back then, liberals were raising the alarm about impending fascism because of post-9/11 policies such as warrantless wiretapping, wars of choice, military commissions, indefinite detention and so on.

Warrantless surveillance, for instance, drew intense scrutiny and saturation media coverage from the time it was discovered until approximately 12:05 p.m. EST January 20, 2009. Interest then dropped off markedly. After all, Barack Obama had promised “no more illegal wiretapping of American citizens.” So, problem solved.

Except it wasn’t. In fact, it got worse.

Admitted pretextual stop had a factual basis, so it was legal. State v. Martin, 83 So. 3d 230 (La. App. 5 Cir. 2011):

In the instant case, the officer was justified in stopping defendant’s vehicle. Officer Mekdessie observed that defendant violated a traffic law in that he had a broken taillight on his vehicle. The Jefferson Parish Sheriff’s Office Arrest Report and Probable Cause Affidavit contained in the record show that defendant was charged with having improper equipment in violation of LSA-R.S. 32:53, which requires that a vehicle contain parts in proper condition.

Moreover, there was no evidence that this stop was a pretext to investigate the commission of other crimes. However, even if it was, this Court indicated in Davis [31 So.3d 513], that police officers may make an initial traffic stop after observing a traffic infraction, even if the stop is a pretext to investigate for other crimes. Also, the fact that the officer did not issue a citation for the traffic offense is not relevant to the constitutionality of the stop.

A motion to suppress is to raise Fourth Amendment violations before trial. It is not to be used in place of a motion in limine of evidence to be excluded. People v. Burney, 2011 Ill. App. LEXIS 1295, 2011 IL App (4th) 100343 (December 27, 2011),* modified on denial of rehearing January 26, 2012.

Search of a cell phone taken at booking into a jail was unreasonable. There was no security need for the search. State v. Granville, 373 S.W.3d 218 (Tex. App. – Amarillo 2012):

We are looking at a privacy interest in data hidden within electrical components contained in the device as well as potential information not in the phone but accessible through its manipulation, that is, data saved on the internet. The State cited us to no evidence suggesting that such data can be scraped off the phone surfaces or components, like blood or DNA affixed to clothes. Nor is there evidence of record that the picture found by the officer was somehow playing or appearing upon the phone’s screen. Quite the contrary. The cell phone had to be activated, or turned on, by the officer, and he had to pull up or scroll through the information imprinted on electronic chips to uncover the photo. It was not exposed to anyone happening to touch the item, which differentiates it from the miscellaneous things accessible on a prisoner’s pants.

Evidence of the phone being off has other import, as well. That evinces some precautionary measure being taken to secure the data from curious eyes. The power button can be likened to the front door of a house. When on, the door is open and some things become readily visible. When off, the door is closed, thereby preventing others from seeing anything inside. And though some cell phones may require the input of a password before it can be used, no evidence suggests that Granville’s was of that type. So, the officer’s ability to venture into the phone’s informational recesses by merely pressing the power button does not suggest that Granville’s interest in assuring the privacy of his information was minimal. Whether the phone was locked or not via a password, a closed door is sufficient to illustrate an expectation of privacy. See Rodriguez v. State, 653 S.W.2d 305, 307 (Tex. Crim. App. 1983).

Now we turn to the subject of society recognizing (or not) an arrestee’s privacy interest in a cell phone impounded during the booking process.1 It must be remembered that Granville was simply a pretrial detainee. This is of import since detainees, in some ways, are accorded greater constitutional protection than a convicted individual. Ex parte Green, 688 S.W.2d 555, 556 (Tex. Crim. App. 1985) (punishment); Rocha v. Potter County, No. 07-09-001-2-CV, 2010 Tex. App. Lexis 2859, at *10-11 (Tex. App.—Amarillo Apr. 20, 2010, no pet.) (due process). They also have a greater chance of being freed soon after their detention through posting bond or other measure. In fact, if the officer who took the cell phone is to be believed, Granville was subject to being released quickly, given that he was arrested for a class C misdemeanor. It also lessens the duration of any control law enforcement officials may exercise over the instrument.

. . .

Due to the potential invasiveness of the search, Granville’s status as a pretrial detainee, the fact that his stay in jail for a class C misdemeanor would be of short duration, the utter lack of any nexus between the cell phone and the crime for which appellant was jailed, and the lack of evidence suggesting that the phone and its contents posed any risk to the jail’s penalogical interests, we conclude that society would recognize his continued, and reasonable, privacy interest in the instrument despite his temporary detention. Indeed, holding that the mere impoundment of property does not vitiate all reasonable expectation of privacy in the item confiscated is nothing new. Law enforcement officials have long been barred from searching impounded vehicles in any manner that they may care to.

Asking for consent to a patdown does not unlawfully extend a stop. State v. Morfin-Estrada, 251 Ore. App. 158, 283 P.3d 378 (2012).*

Visiting an apartment suspected of drug activity, staying a short time, accompanied by a suspected drug user, and just being off probation for drugs was not reasonable suspicion. State v. Bertsch, 251 Ore. App. 128, 284 P.3d 502 (2012):

Here, the state points to the following facts: (1) defendant was observed visiting an apartment suspected of drug activity; (2) defendant left the apartment after only a short time; and (3) defendant was accompanied by a person who was known to associate with drug users and dealers. At the hearing on defendant’s motion to suppress, [the officer] testified that he had also relied on the fact that defendant had recently completed probation for a drug offense because, based on his “training and experience,” he believed that “subjects who are just off probation for a controlled substance offense * * * will continue to use controlled substances.”

Those facts do not give rise to reasonable suspicion that defendant possessed drugs. We have repeatedly said that a person’s presence in a location associated with drug activity is insufficient to support an objectively reasonable belief that that person is himself or herself engaged in drug activity.

Officers staked out a drug deal going down and defendant dropped drugs when he saw the police. He had not been seized at the time he dropped them. State v. Moats, 251 Ore. App. 568, 284 P.3d 568 (2012).*

USMJ’s finding of consent to search is supported by the evidence. United States v. Jackson, 474 Fed. Appx. 454, 2012 FED App. 0851N (6th Cir. 2012).*

Exigent circumstances justified seizure of the defendant’s urine for testing in a DUI case. State v. Walker, 251 Ore. App. 651, 284 P.3d 576 (2012) (per curiam).*

Struggling with whether putting a key in the door is a search, the court determines that it doesn’t have to decide that question. Assuming that it is a search, it was reasonable and virtually de minimus. People v. Robinson, 208 Cal. App. 4th 232, 145 Cal. Rptr. 3d 364 (1st Dist. 2012):

Ultimately, we need not determine whether testing the key in the lock was a search because, even assuming it was a search, the search was not unreasonable. “The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ [Citation.]” (United States v. Knights (2001) 534 U.S. 112, 118–119 [151 L. Ed. 2d 497, 122 S. Ct. 587] (Knights); People v. Sanders (2003) 31 Cal.4th 318, 333 [2 Cal. Rptr. 3d 630, 73 P.3d 496] (Sanders); see also People v. Boulter (2011) 199 Cal.App.4th 761, 768 [131 Cal. Rptr. 3d 185] (Boulter).) “Whether an officer’s conduct was reasonable is evaluated on a case-by-case basis in light of the totality of the circumstances.” (In re Raymond C. (2008) 45 Cal.4th 303, 307 [86 Cal. Rptr. 3d 110, 196 P.3d 810]; see also Knights, at p. 118; Sanders, at p. 333; Boulter, at p. 768.)

a. The Minimal Intrusion Exception to Warrant Requirement

“[I]n most criminal cases,” the balance between an individual’s Fourth Amendment interests and the promotion of legitimate governmental interests “is struck in favor of the procedure described by the warrant clause (viewing a search as reasonable if conducted pursuant to a warrant that has been issued by a neutral magistrate upon a showing of probable cause) ….” (Loder v. City of Glendale (1997) 14 Cal.4th 846, 867–868 [59 Cal. Rptr. 2d 696, 927 P.2d 1200].) Nevertheless, the United States Supreme Court has “made it clear that there are exceptions to the warrant requirement. When faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, [it] has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.” (Illinois v. McArthur (2001) 531 U.S. 326, 330 [148 L. Ed. 2d 838, 121 S. Ct. 946], italics added.) In the present case, we focus on the minimal nature of the intrusion involved in testing the key, because “even if the challenged action triggers the protections of the Fourth Amendment, a ‘minimally intrusive’ action ‘may be reasonable in view of the government interests it serves.’” (U.S. v. $109,179 in U.S. Currency (9th Cir. 2000) 228 F.3d 1080, 1087, fn. omitted; see also, e.g., New York v. Class (1986) 475 U.S. 106, 117 [89 L. Ed. 2d 81, 106 S. Ct. 960] [officer’s search of car dashboard for vehicle identification number obscured by papers was a “minimal” intrusion]; Hayes v. Florida (1985) 470 U.S. 811, 816–817 [84 L. Ed. 2d 705, 105 S. Ct. 1643] (Hayes) [suggesting in dicta that officers could seize and fingerprint a suspect in the field, a procedure the high court characterized as a nonintrusive search, on the basis of reasonable suspicion]; Pennsylvania v. Mimms (1977) 434 U.S. 106, 111 [54 L. Ed. 2d 331, 98 S. Ct. 330] (Mimms) [order that driver of properly detained vehicle get out of car was “de minimis” intrusion]; Arizona v. Johnson (2009) 555 U.S. 323, 331 [172 L. Ed. 2d 694, 129 S. Ct. 781] [citing Mimms with approval]; United States v. White (9th Cir. 1985) 766 F.2d 1328, 1332 (White) [border patrol agent’s act of pushing down on the trunk of an automobile to determine whether the trunk contained heavy objects requiring further investigation, if a search, was a reasonable minimal intrusion].)

Odor of marijuana and defendant’s chewing when the car door was opened was probable cause for a warrantless search because he might be destroying drugs. Gaines v. State, 973 N.E.2d 1239 (Ind. App. 2012).*

Defendant was a police officer who had an accident in a patrol car killing two motorcyclists. Drawing his blood under the implied consent statute by medical personnel at the hospital was not contrary to protocol or unreliable. State v. Bisard, 973 N.E.2d 1229 (Ind. App. 2012).*

Defendant’s car was searched with probable cause for threats on the Governor when it was found near the Governor’s Mansion. Text messages sent by the defendant were incriminating. Once the car was found nearby, there was a reasonable probability the car contained evidence of crime. United States v. Baker, 2012 U.S. Dist. LEXIS 130108 (D. Utah September 11, 2012).*

ACLU: Bad News On Warrantless GPS Tracking by Catherine Crump:

Today the U.S. Court of Appeals for the Ninth Circuit issued a disappointing but fortunately narrow decision in a case involving warrantless tracking of a vehicle with a GPS device. The three-judge panel refused to exclude GPS tracking evidence under what’s known as the “good faith” exception, ruling that when the tracking took place, law enforcement agents reasonably relied on binding circuit court precedent in concluding that no warrant was necessary. The tracking happened before the Supreme Court issued its decision in United States v. Jones that GPS device tracking triggers Fourth Amendment protections.

In the case, [United States v. Pineda-Moreno, 688 F.3d 1087 (9th Cir. 2012)] law enforcement agents attached GPS tracking devices to Mr. Pineda-Moreno’s vehicle. They did not get a warrant, and the Ninth Circuit initially ruled they didn’t need one because of its view that the Fourth Amendment provides no protections against warrantless GPS tracking.

Defendant lacked standing to challenge placement of a GPS device pre-Jones on his brother’s Porsche. United States v. Coleman, 2012 U.S. Dist. LEXIS 109480 (W.D. N.C. August 6, 2012).*

NYTimes: Judge Rules That Mass Arrests at a 2004 Protest Were Illegal by Ruth Fremson:

A federal judge has ruled that the New York Police Department illegally arrested large numbers of demonstrators at a protest in Lower Manhattan during the 2004 Republican National Convention. But the judge upheld aspects of how the city had handled the protesters’ arrests.

The judge, Richard J. Sullivan of Federal District Court, said that the city had lacked the required probable cause because the police were unaware of whether each individual protester had broken the law.

“An individual’s participation in a lawbreaking group may, in appropriate circumstances, be strong circumstantial evidence of that individual’s own illegal conduct,” the judge wrote in a 32-page opinion. “But, no matter the circumstances,” he added, “an arresting officer must believe that every individual arrested personally violated the law. Nothing short of such a finding can justify arrest. The Fourth Amendment does not recognize guilt by association.”