While there is a reasonable expectation of privacy in a tent while camping, the camping has to be lawful. Here defendant was on land he was not permitted to be on, and that’s a big difference. People v. Nishi, 207 Cal. App. 4th 954, 143 Cal. Rptr. 3d 882 (1st Dist. 2012):

Defendant’s unlawful, temporary occupation of the campsite distinguishes the present case from United States v. Gooch (9th Cir. 1993) 6 F.3d 673, 676-677, in which the court concluded that the defendant had an objectively reasonable expectation of privacy in a tent pitched for several days in a public campground where he was “legally permitted to camp.” (Id. at p. 677; see also United States v. Basher (9th Cir. 2011) 629 F.3d 1161, 1167-1168.) In United States v. Sandoval (9th Cir. 2000) 200 F.3d 659, 660-661 (Sandoval), the court extended the holding in Gooch to find a legitimate expectation of privacy associated with the seizure of a medicine bottle discovered during a search of a “makeshift tent” “located on Bureau of Land Management” property, (id. at p. 660), where it was “unclear whether Sandoval had permission to be there.” (Id. at p. 661.) The defendant’s tent in Sandoval was located in an area that was heavily covered by vegetation and virtually impenetrable. In addition, the tent was closed on all four sides, and the medicine bottle was not visible from outside. (Id. at p. 660.) The court in Sandoval concluded: “[W]e do not believe the reasonableness of Sandoval’s expectation of privacy turns on whether he had permission to camp on public land. Such a distinction would mean that a camper who overstayed his permit in a public campground would lose his Fourth Amendment rights, while his neighbor, whose permit had not expired, would retain those rights.” (Id. at p. 661, fn. omitted.)

. . .

Here, in contrast to Sandoval and Hughston, not only was defendant clearly camped in a prohibited location, the shotgun shells were seized from outside his tent, in a pile of debris under a loose tarp. While a tent located in a public campground may be considered a private area where people sleep and keep valuables, functionally somewhat comparable to a house, apartment, or hotel room, the remainder of defendant’s unauthorized, undeveloped campsite was a dispersed, ill-defined site, exposed and open to public view. The area around the tent was not within a defined residential curtilage in which defendant had a reasonable expectation of privacy. (United States v. Basher, supra, 629 F.3d 1161, 1169.) Also, after his repeated removal by officers from campsites he had occupied in the same preserve in the recent past, defendant was conscious of the illegality, which further tends to negate his legitimate expectation of privacy in that location. (People v. Thomas (1995) 38 Cal.App.4th 1331, 1333-1334 [45 Cal.Rptr.2d 610] (Thomas).)

We find the decision in United States v. Ruckman (10th Cir. 1986) 806 F.2d 1471, persuasive in the present case. …

Defendant’s arguments in the trial court were not the same ones made on appeal, so his appeal is governed by the plain error standard, and he doesn’t succeed for lack of a record supporting his argument. He was shot during what was found to be a Terry stop with guns drawn. Under Graham v. Connor, it appeared, on this record, it was justified enough to support the district court’s conclusion. United States v. Hill, 471 Fed. Appx. 143 (4th Cir. 2012)*:

Hill argues that when we weigh the three factors enumerated in Graham — the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect was actively resisting arrest or attempting to evade arrest by flight — it is apparent the officers “did not have an objectively reasonable ground to shoot Hill.” Appellant’s Br. at 25. As to the severity of the crime, he argues it weighs in his favor because at no point did the officers suspect Hill of having committed a crime; other than knowing that Bennett had written “help” on the receipt and herself carried a gun, all their information came from their observations of Hill inside the car. As to the third factor, he argues, Hill was not actively resisting arrest or attempting to flee.

The reasonableness of the officers’ actions thus comes down to whether Hill’s movements inside the car rendered reasonable the officers’ belief that Hill posed an imminent threat to them, justifying the use of deadly force. The government argues the officers were justified in interpreting Hill’s movements as evidence that he was reaching for a gun. Hill argues that belief was unreasonable because “the movement of a suspect’s hands, without more, while he is under arrest is insufficient to give rise to an objectively reasonable basis for the police to use deadly force.” Appellant’s Br. at 26. Only if “the police had seen him with a gun, or had reliable and specific information that he was known to be armed,” might this have been a “significant factor,” he argues. Id. He also points out that the officers’ descriptions of Hill’s precise movements were inconsistent, and that it was Bennett, not Hill, whom the officers knew was armed.

Here again, our problem is the absence of adequate information to find that it was “obvious” that Hill did not pose an imminent threat of serious physical harm to the officers. Had Hill raised these issues in the district court, the risk of non-persuasion on these issues would have been cast upon the government to justify a warrantless seizure. See, e.g., United States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000); United States v. Burke, 605 F. Supp. 2d 688, 693-94 (D. Md. 2009). But under the plain error standard we apply here, Hill must shoulder the burden to prove the contrary. Without findings by the district court on these and related issues, and particularly inasmuch as the surveillance video does not show Hill’s movements in the car, we may not plausibly notice plain error on this record and we decline to do so.

Defendant’s frisk for “generalized safety” was not shown to have any lawful basis, and the motion to suppress should have been granted. The state confessed error. State v. Brooks, 2012 Tenn. Crim. App. LEXIS 425 (June 20, 2012).*

Officers came to defendant’s house with an attachment order for failure to pay child support. The officer was invited inside and then the occupants consented to a search which was shown to be voluntary. State v. Dixon, 2012 Tenn. Crim. App. LEXIS 423 (June 21, 2012).*

The officer here saw defendants smoking marijuana at a Wendy’s so he followed them, stopped them for a traffic offense and smelled more. A search warrant for their motel room was issued, and it was with probable cause and nexus. United States v. Taylor, 471 Fed. Appx. 499 (6th Cir. 2012).*

Advertised on the NYTimes website today: A $300 drone to “Fly and Record in HD.”

One of my local police departments has a $50,000 grant for one, and it hasn’t flown yet, probably because government needs an FAA permit.

n+1.com: Leave Your Cellphone at Home by Sarah Resnick and an interview with Jacob Applebaum:

Earlier this year in Wired, writer and intelligence expert James Bamford described the National Security Agency’s plans for the Utah Data Center. A nondescript name, but it has another: the First Intelligence Community Comprehensive National Cyber-security Initiative Data Center. The $2 billion facility, scheduled to open in September 2013, will be used to intercept, decipher, analyze, and store the agency’s intercepted communications—everything from emails, cell phone calls, Google searches, and Tweets, to retail transactions. How will all this data be stored? Imagine, if you can, 100,000 square-feet filled with row upon row of servers, stacked neatly on racks. Bamford projects that its processing-capacity may aspire to yottabytes, or 10²⁴ bytes, and for which no neologism of higher magnitude has yet been coined.

arstechnica.com: House approves another five years of warrantless wiretapping / Reauthorization of the FISA Amendments Act must still be passed by the Senate by Timothy B. Lee:

The House of Representatives easily passed legislation on Wednesday to re-authorize the FISA Amendments Act, the 2008 law that allows the federal government to intercept the international communications of Americans with minimal judicial oversight. The vote was 301 to 118.

“I think that the government needs to comply with the Fourth Amendment to the Constitution all the time,” said Rep. Zoe Lofgren (D-CA) in a floor speech opposing the bill. “We can be safe while still complying with the Constitution of the United States.”

The Jones trespass prong doesn’t affect the Greenwood trash search case. Greenwood isn’t even mentioned, so it wasn’t overruled. United States v. Weston, 2012 U.S. Dist. LEXIS 129201 (N.D. Ind. September 10, 2012):

Relying on United States v. Jones, 132 S.Ct. 945 (2012), which held that a Fourth Amendment “search” occurred where law enforcement attached a global-positioning-system device to a vehicle and used the device to track the vehicle’s location on public streets, Defendant argues Greenwood is no longer good law. It’s a tough sell-none of the three Supreme Court opinions in Jones even mentions Greenwood. Surely if the Jones Court had intended to overrule a decision as influential as Greenwood, it would have said so.

A passage from Justice Sotomayor’s concurrence provides the strongest support for Defendant’s interpretation, but it’s nowhere near strong enough. In it, Justice Sotomayor expresses openness to reconsidering “the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” Jones, 132 S.Ct. at 957. To be sure, the Greenwood majority reaffirmed precisely that premise, which it traced to Smith v. Maryland, 442 U.S. 735, 743-44 (1979). Greenwood, 486 U.S. at 41. But no other justice joined Justice Sotomayor’s opinion. (This is no critique of Justice Sotomayor’s opinion, only a demonstration of the absence of any reason to think another justice shares her view.) Moreover, Justice Sotomayor’s apparent willingness to reexamine the third-party principle was not essential to her decision to join the Jones majority. See Jones, 132 S.Ct. at 957 (“Resolution of these difficult questions in this case is unnecessary, … because the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision.”).

Defendant had no standing to contest the search of the book bag of an elementary school student in his car. The student was in the car when it was stopped, and he was getting a ride from somebody else, and he asked for the book bag and an officer retrieved it, but looked in it before handing it over. The book bag wasn’t under his control that afternoon, and inside was cocaine. Apparently the drugs were stashed there then. United States v. Magwood, 2012 U.S. Dist. LEXIS 128697 (D. S.C. September 11, 2012).*

Defendant was repeatedly told he was free to leave and he still kept talking to the officers, and that was by consent. United States v. Hernandez, 2012 U.S. Dist. LEXIS 128078 (E.D. N.C. September 10, 2012).*

The court credits the officers’ testimony on the defendant’s consent. Compared to theirs, the defendant’s testimony was contradictory and confusing. United States v. Benitez-Vergara, 2012 U.S. Dist. LEXIS 129097 (N.D. Tex. September 11, 2012).*

The two dog sniff cases, Florida v. Jardines and Florida v. Harris, are set for argument on October 31st in SCOTUS.

The Atlantic: Is Antonin Scalia Still Relevant? by Garrett Epps:

The Reagan appointee has been perhaps the most significant influence on law in the past three decades. But the start of the new Term looks likely to mark the end of the Scalia Court and the beginning of the Roberts one.

Lawfare: Drone Lost in Skies Over Washington D.C. Neighborhood by Ritika Singh

A drone has gone missing in Washington. No, not a Predator or a Reaper—and not one of the drones that is gearing up for the Lawfare Drone Smackdown. And no, not @drunkenpredator on his latest binge. It’s just some guy’s drone—and he’s done just what you would do if you lost your pride and joy: He’s posted a flier.

No, this is not a joke. It is real. I promise.

Defendant likely would not have been stopped at a safety checkpoint, but he was approaching at an unsafe speed, and an officer shouted at him to slow down, and he stopped. Three to five minutes later, the officer approached the car after processing another, and he smelled alcohol on defendant’s breath. The further detention was valid, and the trial court erred in suppressing. People v. Clements, 2012 Ill. App. LEXIS 734, 2012 IL App (3d) 110213 (September 5, 2012).*

“Officer McCoy, using an application on his smartphone, read the defendant the Miranda warnings.” United States v. Jones, 2012 U.S. Dist. LEXIS 127268 (N.D. Ohio September 7, 2012). [Not a Fourth Amendment case; I just hadn’t heard of that yet. Sensing some importance here, I memorized the Miranda warning in law school, five years after it was decided. Every person in America with a television has heard it hundreds of times, thanks to pop culture. Cf. Dickerson v. United States, 530 U.S. 428 (2000). I imagine the only people who don’t know it after 46 years are the unarrested without television.]*

engadget.com: FBI to roll out $1 billion public facial recognition system in 2014, will be on to your evildoing everywhere by Jason Hidalgo:

They’re watching you — or at least will be in a couple of years. That’s when the FBI is gearing up for a nationwide launch of a $1 billion project designed to identify people of interest, according to the New Scientist. Dubbed the Next Generation Identification (NGI) program, the high-tech endeavor uses biometric data such as DNA analysis, iris scans and voice identification to track down folks with a criminal history. The FBI also plans to take NGI on the road literally by using public cameras to pick faces from the crowd and cross check them with its national repository of images.

The trial court did not err in accepting the officer’s testimony that the defendant was going faster than he was, so he stopped him. Defendant’s argument that he was actually going slower than the officer projected was based on a land surveyor’s opinion from the video, but the land surveyor wasn’t called as a witness. State v. White, 2012 Tenn. Crim. App. LEXIS 690 (August 31, 2012).* [If you’re challenging the officer’s testimony that the defendant wasn’t committing a traffic violation, you can only win if the officer’s testimony is really, really vague or just plain incredible to the point it would be error to accept it (I’ve seen only one here). On the clearly erroneous standard, if there’s anything for the trial court to attach to, the defendant loses on appeal. This is not a trade secret–the police already know it. That’s why they can testify so vaguely as “he said, she said” and the factfinding is virtually unchallengable.]

Where a motion to suppress would not have been granted had it been made, defense counsel could not be ineffective for not making it. People v. Brock, 2012 IL App (4th) 100945, 2012 Ill. App. LEXIS 737 (September 7, 2012).*

In a dissent from a denial of certiorari, the dissenter opines there was no probable cause shown in the thin attempt to support the CI and a failure from the affidavit itself in Alabama is a failure of the good faith exception. (The decision cert was sought from is not reported.) Lane v. State, 2012 Ala. LEXIS 113 (September 7, 2012) (Malone, J., dissenting).*

A search of defendant’s computer by his girlfriend after she found pictures of naked minors on it, after the police told her not to do anything on her own, was purely a private search. United States v. Alter, 2012 U.S. Dist. LEXIS 127305 (N.D. Ind. September 7, 2012).*

During a traffic stop, the officer saw the passenger shove something in a child’s school bag at her feet. The mother of the child could consent to the search of the bag, not that anybody would have standing in the bag [sounds like Rawlings]. United States v. Santa, 2012 U.S. Dist. LEXIS 127308 (E.D. Pa. September 7, 2012).*

Officers were in sort of hot pursuit of a fleeing felon who went to defendant’s house. They consented to entry to look for the felon and guns were found in plain view. United States v. King, 2012 U.S. Dist. LEXIS 127359 (S.D. W.Va. September 7, 2012).*

There is no Fourth Amendment reasonable expectation of privacy in medical records held by a doctor. The third-party doctrine and consent also must apply. United States v. Mitchell, 2012 U.S. Dist. LEXIS 126651 (D. Md. September 5, 2012):

1. The inquiry into whether an individual has a Fourth Amendment reasonable expectation of privacy in her medical records is distinct and separate from whether an individual has a Fourteenth Amendment privacy right against compelled disclosure of medical information to the government.

Before embarking on an analysis of the reasonableness of Bellosi-Mitchell’s expectation of privacy in certain medical records, it is important to focus on the constitutional basis for the right asserted. The inquiry into whether an individual has a reasonable expectation of privacy in her medical records under the Fourth Amendment is distinct and separate from whether an individual has a Fourteenth Amendment privacy right against compelled disclosure of medical information. See Katz v. United States, 389 U.S. 347, 350-51 (1967) (Fourth Amendment privacy right “cannot be translated into a general constitutional right to privacy” under the Fourteenth Amendment). The Supreme Court emphasized this point in the seminal case of Whalen v. Roe, 429 U.S. 589 (1977). There, the Court addressed the question of whether a New York statute, which required prescriptions for drugs that had been classified “Schedule II” to be forwarded to the New York State Department of Health, invaded a constitutionally protected zone of privacy. Id. at 598. In holding that the New York statute was constitutional, the Court reasoned that, although the Fourth Amendment forbids government searches in areas where an individual has a reasonable expectation [*9] of privacy, the Fourth Amendment privacy interest was not at issue; rather, the only privacy right at issue was the Fourteenth Amendment’s individual privacy right against compelled disclosure to the state. Id. at 604. n.32 Unlike the Fourth Amendment analysis where one either has or does not have a reasonable expectation of privacy in the places searched during a criminal investigation, the Fourteenth Amendment analysis involves a balancing test in which courts weigh the individual’s privacy interest against the rationale underlying the compelled disclosure of information to the government. Id. In Whalen, the court found that individuals had a Fourteenth Amendment privacy interest in health information but weighed this interest against the state’s interest in monitoring and enforcing the laws against misuse of Schedule II drugs. Id. at 603. Because the statute mandated the capture of certain medical information but not necessarily the disclosure by the state of that information, the Court concluded that the statute did not “pose a sufficiently grievous threat to either interest to establish a constitutional violation.” Id. at 603-04.

Indeed, lower courts have generally declined to extend Whalen to hold that patients have a Fourth Amendment expectation of privacy in their medical records. See Douglas v. Dobbs, 419 F.3d 1097, 1102 (10th Cir. 2005) (finding that an Assistant District Attorney did not violate a pharmacy customer’s Fourth Amendment right to be free from unreasonable search of her prescription records despite the fact that Whalen creates a Fourteenth Amendment right to be free from governmental disclosure of medical information); State v. Skinner, 10 So.3d 1212, 1218 (La. 2009) (“We are not prepared to extend Whalen, which balanced the individual’s privacy interest against the state’s reasonable exercise of its regulatory power, to … [Fourth Amendment] searches and seizures of its citizens’ medical and pharmacy records for criminal investigative purposes”). But see United States v. Lievertz, 247 F.Supp. 2d 1052, 1063 (S.D. Ind. 2002) (applying Whalen to conclude that a patients’ Fourth Amendment privacy rights were not violated by warrant-authorized search of medical records because the government’s compelling interest in deterring criminal misconduct outweighed any of patients’ privacy rights.). Because this Court believes that the better-reasoned cases segregate an individual’s Fourteenth Amendment right to privacy—i.e. state actors who compel the disclosure of a patient’s medical information— from an individual’s Fourth Amendment reasonable expectation of privacy, this Court will employ a similar approach.

Computerworld: Reasonable expectation of privacy in a world where Big Brother is WWWatching?
By Darlene Storm

Whether it’s revealed through a hack, leak or investigative reporting, a week rarely passes without hearing something unpleasant in regards to surveillance vs Fourth Amendment protections. Juice Rap News 15 has a new video, showing both sides, those who are for and against surveillance. It’s called Big Brother is WWWatching You.

This video had me pondering civil liberties clashing with technology; it led to deep thoughts about what is a “reasonable expectation of privacy” in this world of surveillance?

Volokh Conspiracy: Two District Court Rulings That Cell-Site Data Not Protected Under the Fourth Amendment by Orin Kerr:

On Tuesday, DOJ filed a brief in the United States District Court for the District of Columbia in United States v. Antoine Jones, on remand from the Supreme Court, on the question of whether cell-site location information is protected under the Fourth Amendment. It’s a good brief, I think, and I was particularly intrigued by the appendices. The appendices included two recent unpublished federal district court decisions on Fourth Amendment protection for cell-site data. To my knowledge, neither opinion has been public before — or if they were public, they are not on Westlaw. Here they are for those interested: …

Remember the Barnes case? My summary: Common law right to resist what the homeowner reasonably believes to be an unlawful police entry into the home, dating from the Magna Carta, has been abrogated by modern law. Barnes v. State, 82S05-1007-CR-343 (Ind. May 12, 2011) (3-2).

See Bloomberg.com: NRA-Backed Law Spells Out When Indianans May Open Fire on Police by Mark Niquette. This hit the intertubes in June, but I just stumbled on it.

Wired.com: ACLU Sues Police for Seizing Man’s Phone After Recording Alleged Misconduct by Kim Zetter:

The ACLU has sued the District of Columbia and two police officers for allegedly seizing the cellphone of a man who photographed a police officer allegedly mistreating a citizen, and for then stealing his memory card.

The suit, filed in federal court (.pdf) in Washington, D.C., alleges that the police officer violated Earl Staley, Jr.’s First Amendment and Fourth Amendment rights by improperly searching and seizing his property while he was exercising his right to photograph the police performing their duty.