NewAmerican.com: The Fourth Amendment and the Drones: How Will it Apply? by Joe Wolverton, II:

On a near daily basis, The New American chronicles the approach of the day when squadrons of drones will fill the skies of the United States. Scores of these unmanned aerial vehicles (UAV) will be deployed by state and local law enforcement, adding to the many already deployed by the federal government.

With the rise of the drones comes the rise of several critical questions of Constitutionality of their potential uses. …

NextGov.com: Finally, a new bill requires police get a judge’s approval before they see your texts or location By Robinson Meyer, The Atlantic:

A month ago, we learned that more (and maybe many, many more) than 1.3 million people’s cell phone data were handed over to US law enforcement agencies in 2011 alone. Text messages, caller locations, and records of who called whom and for how long had all been shared without a judges’ approval — because, according to current law, no approval is needed.

Last week, the Congressman who helped reveal how rampant and unregulated that sharing is introduced legislation to start restraining it. Called the “Wireless Surveillance Act of 2012,” the new bill, in the words of its Massachusetts’s Edward Markey, attempts to “update the 4th amendment for the 21st century.”

The discussion draft of the Surveillance Act, according to Markey, would immediately limit how and why enforcement agencies can ask for “tower dumps.”

Defendant was washing his car and approached by an officer in a high crime area because he matched the description of somebody involved in a robbery. On seeing the officer, defendant moved furtively to attempt to apparently hide, and that gave the officer concern for his safety that defendant might be arming himself. The stop was reasonable. United States v. Anderson, 2012 U.S. Dist. LEXIS 113827 (N.D. Okla. August 10, 2012).*

The government had two arguments to support the search of one defendant’s person. The court decides both, finding them both sufficient. The first was probable cause to arrest and the second was probable cause drugs would be on the person. There was also probable cause for search of the car of the other defendant based on what had transpired. United States v. Moustrouphis, 2012 U.S. Dist. LEXIS 113490 (D. Maine May 30, 2012).*

Cato: TSA Profiling, Security Theater, and the Fourth Amendment by Julian Sanchez:

This weekend, The New York Times reported that the Transportation Security Administration’s “behavioral detection” program at Logan Airport has devolved into a racial profiling program, according to complaints from 32 federal officers who’ve seen up-close how it works. And yet to my eye, racial profiling isn’t the only constitutionally problematic aspect of the program revealed in the article (emphasis mine below): …

NYC has a program where livery cabs opt to be stopped for protection of the driver from robbery. The livery cab owner has to opt in and there are decals for the police to see. This livery cab had a decal from its prior owner but this owner had not opted in. The stop was still objectively reasonable because the mistake was reasonable, and the officer’s plain view of a gun between the feet of the passenger was sustained. The failure to comply with some program details was not sufficient to suppress the search. United States v. Edwards, 2012 U.S. Dist. LEXIS 110344 (S.D. N.Y. August 6, 2012).* Describing the program: “In People v. Abad, 98 N.Y.2d 12, 17, 771 N.E.2d 235, 744 N.Y.S.2d 353 (2002), the New York Court of Appeals held that TRIP ‘properly balances the competing interests under Brown.’”

Even if Officer 1 had failed to ask the driver to open the passenger door, the fact that he had seen the portion of a gun in plain view at Edwards’ feet provided “independent reason to detain [him].” Abad, 98 N.Y.2d at 18. Furthermore, the fact that Officer 1 may not have specifically inquired about the driver’s safety is insufficient to suggest that the stop was unlawful, particularly in light of the fact that the officer had already identified the potential danger when he observed the gun’s hammer while approaching the vehicle and pointing his flashlight into the interior of the car.

. . .

Finally, Edwards contends that the stop is unlawful because the officers failed to record the stop in an activity log, as required by the TRIP protocol. The officer’s failure in this instance to complete a separate TRIP log is not sufficient to invalidate the stop. The purpose of the requirement is “to afford[] the possibility of post-stop judicial review to the extent questions are raised as to the actual operation of the program,” Abad, 98 N.Y.2d at 18 (internal quotation marks omitted). In this case, Edwards was afforded considerable post-stop judicial review, including the opportunity to cross-examine the officers who arrested him. The Government also provided, at the evidentiary hearing, Officer 1’s contemporaneous record of the stop in his regular notebook. The absence of an official activity log thus did not deprive the Court of the ability to review the facts of the stop as recorded by the arresting officer.

A deputy U.S. Marshal was indicted for a civil rights violation for excessive force on an arrestee and then seeking to cover it up with witnesses. He had no reasonable expectation of privacy in his work-issued Blackberry nor in the hard drives on his office computer because he was repeatedly warned of lack of privacy in them. He argued for a subjective expectation of privacy. Alternatively, even if he did, it was reasonable under the special needs exception for a government workplace search. United States v. Linder, 2012 U.S. Dist. LEXIS 112134 (N.D. Ill. August 9, 2012).* The concluding paragraph of this issue:

Linder did not have a reasonable expectation of privacy in his government-issued Blackberry or in his computer files stored on the government server. Linder was aware of the DOJ’s and USMS’s clear policies regarding the lack of a reasonable expectation of privacy in using both his Blackberry and the government information system. Furthermore, Linder was warned many times about these policies. Indeed, his computer displayed a banner and his Blackberry displayed a disclaimer every time he accessed them. Banners and policies generally eliminate an employee’s reasonable expectation of privacy in a government users’ network account. Furthermore, policies that authorize the employer to access the employee’s workplace diminish any reasonable expectation of privacy that the employee may have in their workplace. In addition, an employee cannot maintain a reasonable expectation of privacy in his electronic data when he is notified that his employer has reserved the right to access or inspect the information stored on his computer. For these reasons, Linder did not have a reasonable expectation of privacy in his Blackberry and the files he stored on the government server. Even if Linder’s subjective belief that he did have a reasonable expectation of privacy in these things were to be credited, such an expectation is not one that society is prepared to recognize as reasonable. And in the unlikely event that the search of Linder’s Blackberry and computer files did trigger Fourth Amendment protections, no warrant was required because the search falls within two well-recognized exceptions to the warrant requirement. First, the search was a reasonable government search regarding work-related misconduct, and therefore falls within the “special needs” exception to the warrant requirement. Second, Linder consented to the search by using the Blackberry and the government server aware that he was waiving his right to be free from government searches. For the foregoing reasons, Linder’s Motion to Suppress is denied.

Orin Kerr, Reviewing the Fourth Amendment cases of OT2011 on SCOTUSBlog.

NC adopts the de minimus seizure standard of the Eighth Circuit’s Alexander in traffic stops extended for the drug dog to arrive. State v. Sellars, 2012 N.C. App. LEXIS 949 (August 7, 2012):

There are two lines of cases from the North Carolina Court of Appeals which appear to reach contradictory conclusions on the question of whether a de minimis delay implicates a defendant’s Fourth Amendment rights. Upon closer examination of the facts and timing of these decisions, we hold that they are reconcilable.

. . .

In United States v. Alexander, 448 F.3d 1014 (8th Cir. 2006), the 8th circuit expanded upon the reasoning in Caballes and embraced the de minimis approach to traffic stops. Defendant, Alexander, was stopped due to his car having only one of the required two California license plates. After the officer indicated that he was only going to issue him a warning, the officer then asked for permission to search the vehicle. Alexander declined. Id. at 1017. The officer then told Alexander that he would be conducting a dog sniff test on the car and if nothing was detected he would be free to leave. Id. The drug dog alerted to the car and a subsequent search revealed drugs in the vehicle. The drug sniff test was completed approximately four minutes after Alexander was told he would be receiving a warning ticket. Id. The court held that this four-minute detention was de minimis:

Once an officer has decided to permit a routine traffic offender to depart with a ticket, a warning, or an all clear, the Fourth Amendment applies to limit any subsequent detention or search. United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 648 (8th Cir.1999). We recognize, however, that this dividing line is artificial and that dog sniffs that occur within a short time following the completion of a traffic stop are not constitutionally prohibited if they constitute only de minimis intrusions on the defendant’s Fourth Amendment rights. Id. at 649; see also Martin, 411 F.3d at 1002.

448 F.3d at 1016. The court went on to hold that the artificial line marking the end of a traffic stop does not foreclose the momentary extension of the detention for the purpose of conducting a canine sniff of the vehicle’s exterior. Id. at 1017.

We conclude that the Falana line of cases did not consider the de minimis analysis created by Caballas and Alexander. However, the latter case of Brimmer allowed police to extend a traffic stop for the purpose of a dog sniff for a de minimis amount of time. Under Brimmer this de minimis rule applies in North Carolina.

Get used to it because this is the wave of the future. From my rules:

4. A seizure and a search are separate constitutional events. (Soldal)

5. Both recognize de minimus intrusions as being unreasonable (seizures (Delgado); searches (Hicks)), but lower courts like finding seizures de minimus more than searches.

Defendant was subjected to a patdown because of the smell of marijuana coming from his vehicle. No weapon was found, and the officer manipulated a bulge thinking it was drugs. The officer searched for it as a “plain feel.” This was an “evidentiary search” in violation of Dickerson. United States v. Banks, 2012 U.S. Dist. LEXIS 111762 (M.D. La. August 8, 2012):

Once Officer Collins determined that the item was not contraband, a further search of Defendant’s person must have been justified by a warrant or some other exception to the warrant requirement. At the hearing, Officer Collins was unable to articulate any independent reasons for the search and subsequent seizure of the oxycodone. For instance, no testimony was provided: (1) suggesting Officer Collins smelled marijuana on Defendant’s person (thus creating a “plain smell” exception to the warrant requirement), (2) indicating that a reliable source may have informed Officer Collins that Defendant had contraband on his person, or (3) indicating that Defendant’s independent action that may have led Officer Collins to believe drugs that were on his person. Thus, in seizing the oxycodone from Defendant’s person, under the circumstances presented here, officers conducted the type of search that “amounted to the sort of evidentiary search that Terry expressly refused to authorize.” Accordingly, the Court orders the suppression of the oxycodone.

A dog alert on a car where the occupants are removed does not give probable cause to search their persons, at least the passenger. State v. Smith, 2012 N.C. App. LEXIS 943 (August 7, 2012):

We note that in Whitehead [v. Commonwealth, 278 Va. 300, 683 S.E.2d 299 (2009)], the Commonwealth had a stronger case for probable cause to search the passengers than was present in the instant case. In Whitehead, the drug dog “hit” on the vehicle while defendant was inside of the vehicle, whereas in the instant case, the drug dog “hit” on the vehicle while no one was inside. We also note that the drug dog hit at the driver’s door, and that defendant was a passenger.

“The textual touchstone of the Fourth Amendment is reasonableness. When applying this basic principle, the Supreme Court has consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry.” State v. Shearin, 170 N.C. App. 222, 240, 612 S.E.2d 371, 384 (2005) (quoting Alvarez v. Montgomery County, 147 F.3d 354, 358 (4th Cir. 1998)). Given the specific facts of this case, we hold that it is factually more similar to Anderson and Whitehead then to Anchondo. We note that the rationale of Anchondo has been specifically rejected by Anderson, Gibson, Wallace, and Fondia. Further, we hold the logic of Anderson and Whitehead to be more compelling than that of Anchondo. The fact that defendant was formerly a passenger in a motor vehicle as to which a drug dog alerted, and a subsequent search of the vehicle found no contraband, is not sufficient, without probable cause more particularized to defendant, to conduct a warrantless search of defendant’s person.

Cato: The Fourth Amendment Doesn’t Allow Roving Licenses to Detain People Without Probable Cause by Ilya Shapiro and David Scott.

Searches and seizures have long been held to be unreasonable under the Fourth Amendment unless supported by probable cause. There are only a few narrow exceptions to that probable cause requirement.

The Supreme Court found one such exception in the 1981 case of Michigan v. Summers, which gave police a limited authority to detain the occupants of premises that were lawfully being searched. The Court justified this limited detention by invoking the need for officers to have “unquestioned command” of the premises and prevent flight should incriminating evidence be found, thus “minimizing the risk of harm to the officers” and facilitating “the orderly completion of the search.”

Plaintiff’s car was validly towed to impound because she was hospitalized after an accident. She had difficulty in regaining her vehicle, and she sued for $500B. “Plaintiff’s claims do not appear to challenge the actual seizure of her vehicle, but instead focus on her inability to regain possession of her vehicle. Plaintiff’s interest in regaining her vehicle, however, is outside the scope of the Fourth Amendment. See Fox v. Van Oosterum, 176 F.3d 342, 351 (6th Cir. 1999) (‘[T]he Fourth Amendment protects an individual’s interest in retaining possession of property but not the interest in regaining possession of property.’).” Mathis v. Dep’t of Pub. Safety, 2012 U.S. Dist. LEXIS 76780 (S.D. Ohio June 4, 2012).

Defendant was possibly speeding and hastily exited from a freeway, but the officer didn’t stop the defendant. He followed him home. Defendant got out of his van and went onto his porch and the officer followed. The attempted stop on defendant’s porch was without reasonable suspicion of any wrongdoing other than the alleged traffic offense, and that wasn’t good enough. Defendant testified that he did not know there was a police officer in the car because it was unmarked. “Sgt. Norman followed and grabbed Defendant by the back of his coat. Defendant pulled away and continued behind the house. At this point, uniformed officers appeared on the property, and they Tasered, handcuffed and arrested Defendant.” The search that relieved him of his gun was unreasonable under the Fourth Amendment. United States v. Walker, 2012 U.S. Dist. LEXIS 76781 (S.D. Ohio June 4, 2012)*, reconsideration denied 2012 U.S. Dist. LEXIS 111919 (S.D. Ohio August 9, 2012).*

Defendant rear-ended a vehicle with three U.S. Marshals, and he was arrested for DUI. His vehicle was searched for evidence of the DUI. This search violated Arizona v. Gant, and the court determines a reasonable suspicion standard is required to determine whether a search incident is proper, not the per se rule sought by the government. United States v. Taylor, 12-CO-5 (August 9, 2012):

As some of these courts have emphasized, practical considerations also counsel in favor of concluding that Gant’s reasonable belief standard is analogous to reasonable suspicion. Both the police and the courts are already familiar with the reasonable suspicion standard. Mbacke, 721 S.E.2d at 222. In addition, applying the well-established Terry doctrine would limit the proliferation of Fourth Amendment standards and prevent the associated confusion that such profusion would sow.

In this case, the government has not asked us to hold that Gant created a per se rule, and we decline to do so sua sponte. For the reasons just described, and in the absence of further guidance from the Supreme Court, we hold that officers must have reasonable, articulable suspicion to conduct a vehicle search under the second prong of Gant.

This case underscores the dominance of the reasonable suspicion standard. If one looks, threads of the reasonable suspicion standard can be found all around the Fourth Amendment landscape. Where probable cause is not mandated, reasonable suspicion for police action at least supports reasonableness by definition. When I was briefing knock and announce for SCOTUS back in the mid-90’s, what was to be the standard for applying the exceptions? I concluded that reasonable suspicion had to be the standard, and found support in a couple of places for making the argument. It seemed logical, was a good fit, and it removed discretion from “the officer in the field.” This holding is, too.

The Fourth Amendment’s third party records rule permits the use of a DEA administrative subpoena rather than a grand jury subpoena for electric records. The subpoena was not too broad for the Fourth Amendment under Walling, and it was relevant to an inquiry. United States v. Golden Valley Electric Assn., 11-35195 (9th Cir. August 7, 2012):

[6] An administrative subpoena may not be “too indefinite or broad.” Peters v. United States, 853 F.2d 692, 699 (9th Cir. 1988). “The critical questions are: (1) whether Congress has granted the authority to investigate; (2) whether procedural requirements have been followed; and (3) whether the evidence is relevant and material to the investigation.” EEOC v. Children’s Hosp. Med. Ctr. of N. Cal., 719 F.2d 1426, 1428 (9th Cir. 1983) (en banc), overruled on other grounds as recognized in Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299 (9th Cir. 1994). Even if other criteria are satisfied, “a Fourth Amendment ‘reasonableness’ inquiry must also be satisfied.” See Reich v. Mont. Sulphur & Chem. Co., 32 F.3d 440, 444 n.5 (9th Cir. 1994). The scope of judicial review in an administrative subpoena enforcement proceeding is “quite narrow.” Children’s Hosp. Med. Ctr., 719 F.2d at 1428.

Golden Valley makes four principal arguments on appeal. First, it argues that the subpoenaed records are irrelevant to the DEA’s investigation. Second, it argues that the Attorney General did not verify the existence of a pending drug investigation involving the three residences prior to issuing the subpoena. Third, it argues that the subpoena was an overly broad “John Doe” subpoena. Fourth, it argues that issuance of the subpoena violated the Fourth Amendment because the government should have obtained a search warrant or a grand jury subpoena. We take each argument in turn.

. . .

[11] “[I]n the context of an administrative [subpoena], the Fourth Amendment’s restrictions are limited.” Mont. Sulphur, 32 F.3d at 448. We have described the scope of protection:

[I]t is sufficient [for Fourth Amendment purposes] if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant. The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable.

Id. (quoting United States v. Morton Salt Co., 338 U.S. 632, 652-53 (1950)) (internal quotation marks omitted; alterations in original). An administrative subpoena is consistent with the Fourth Amendment if “the investigation is authorized by Congress, is for a purpose Congress can order, and the documents sought are relevant to the inquiry.” Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 209 (1946). “Beyond this[,] the requirement of reasonableness … comes down to [whether] specification of the documents to be produced [is] adequate, but not excessive, for the purposes of the relevant inquiry.” Id. A “subpoena should be enforced unless the party being investigated proves the inquiry is unreasonable because it is overbroad or unduly burdensome.” Children’s Hosp., 719 F.2d at 1428 (citing Okla. Press, 327 U.S. at 217; Morton Salt Co., 338 U.S. at 653).

Golden Valley contends that the Government should have to meet a higher standard than that just described. Golden Valley notes that the government normally obtains evidence in a criminal investigation through a search warrant, which requires probable cause and prior judicial review, or a grand jury subpoena, which requires the presentation of evidence and grand jury approval.

PoliceOne.com: Cell phones, privacy, and the Fourth Amendment by Terrence P. Dwyer:

A police officer arrests a drug suspect, confiscates his cell phone, and casually scrolls through the call log and text messages.

While in possession of the phone, the arresting officer receives either an incoming call or text message from the drug suspect’s connection. Pretending to be the drug suspect the police officer makes arrangements with the person at the other end of the call or text message to meet and purchase drugs. The drug dealer shows up at the pre-arranged location and the rest of the story plays out as you might expect, the dealer is in possession of a quantity of drugs, arrested and now the officer has two in custody for the price of one.

Defendant was under a protective order barring him from the property where he was found, and that denied him a reasonable expectation of privacy in the premises, despite the fact the person to benefit from the protective order let him in. This is “wrongful presence”; therefore, no REP. United States v. Conshafter, 2012 U.S. Dist. LEXIS 110501 (E.D. Tex. July 24, 2012).

Hiding in a house from the police does not give one standing under Olson. United States v. Pate, 2012 U.S. Dist. LEXIS 109088 (D. Minn. August 3, 2012), R&R 2012 U.S. Dist. LEXIS 110574 (D. Minn. July 18, 2012).

Defendant was the passenger in a car stopped after a shooting on an Indian reservation. He lacked standing. United States v. Allman, 2012 U.S. Dist. LEXIS 108803 (D. S.D. August 3, 2012), R&R 2012 U.S. Dist. LEXIS 108817 (D. S.D. June 29, 2012).*

Defendant made a sufficient showing to get the CI’s identity under Roviaro on the question of defendant’s standing. The government argued there was an alternative ground to sustain the search without it which the court did not yet decide. United States v. Johnson, 2012 U.S. Dist. LEXIS 111085 (D. Nev. August 7, 2012):

Based on the foregoing, the Court finds that Defendant has made the required threshold showing for an in camera hearing regarding the identity of the informant, the substance of the information that the informant provided to the police officers, and whether the informant was reliable. An in camera hearing is also justified to determine whether the informant has any knowledge relating to whether Defendant was a trespasser or was lawfully present on the subject premises at the time of the officer’s entry and subsequent search. The Government states that “[i]f the Court feels that an in camera review of the CI file is necessary to make this determination, the Government will provide the file upon the Court’s request.” Opposition to Motion to Compel (#27), pg. 9. In view of the foregoing, the Court directs the Government to provide a copy of the CI file under seal to the Court’s chambers for in camera review. This does not mean, however, that production of the CI file for in camera review will alone be sufficient to satisfy the requirement for an in camera hearing. The Court will entertain further oral argument on this issue at the hearing presently scheduled for August 13, 2012.

Teri Dobbins Baxter, Low Expectations: How Changing Expectations of Privacy Can Erode Fourth Amendment Protection and a Proposed Solution, 84 Temp.L.Rev. 599 (2012):

Technology has changed the lives of every American, but it has revolutionized the way that young people socialize and become socialized. The increasing use of technology to interact with their peers and shape their identities has led to a change in the way personal information is shared and the privacy expectations that are held with respect to that information. Various studies have found that, in general, younger generations have lower privacy expectations than their older counterparts. This Article considers how these changing attitudes towards privacy among youth have the potential to erode Fourth Amendment protection for everyone. The Article then proposes changes to the current test for Fourth Amendment protection that take into consideration the changes in society brought about by rapidly developing technology. Specifically, the Article proposes a test that asks: (1) whether a person has taken steps to reasonably limit access to the information or place targeted for search or seizure; and (2) if so, whether society is prepared to protect the information or space from government intrusion.

U.Chi.Underg.L.Rev.: A Technologically Sensitive Amendment: A Historical Analysis of the Fourth Amendment and the Development of Technology by Aglaia Ovtchinnikova:

The original Constitution, drafted in 1787, did not contain a Bill of Rights. The Fourth Amendment contains just fifty-four words, and, while on the surface they seem reasonably clear, one must note that it does not forbid all searches; nor does it forbid all searches without a warrant granted by a court. The Amendment undoubtedly forbids “unreasonable searches and seizures,” but in practical application, we rely so heavily on the facts of each case that any sense of grounding in neutrality or standard procedure is heavily shaken. With each case that is brought forth, the courts grapple with the drafters’ intention, while balancing the needs of the people in the modern era. The introduction of various technologies that the drafters could have never even imagined begs the question: what types of searches enabled by these novel devices should be permitted as constitutional, and which others should be deemed so intrusive that they violate the protections offered by the Fourth Amendment?

Reason.com: NYPD Stops Drop As Officers Learn About This Fourth Amendment Thingie by Jacob Sullum:

The number of street stops by the NYPD, which has increased every year of the Bloomberg administration but one and hit a record 684,330 last year, fell by 25 percent in the second quarter of this year compared to the same period in 2011. The New York Times suggests the drop is largely the result of uncertainty about political support for the city’s stop-and-frisk program, which involves detaining, questioning, and (about half the time) searching supposedly suspicious people, overwhelmingly black or Hispanic men. Citing unnamed police sources, the Times says sergeants conducting roll calls no longer push officers to make such stops, which have been widely criticized and are the target of a recently certified federal class action. The lawsuit argues that the NYPD routinely violates the Fourth Amendment because its stops and searches are not justified by reasonable suspicion and that the program is racially biased, violating the 14th Amendment’s Equal Protection Clause. “Cops are nervous, and supervisors are nervous,” one supervisor told the Times.