ProPublica: How Do You Feel About Smartphone Surveillance? Our Readers Respond:

Your cell phone tracks where you go and what you do, revealing details about your life that can prove quite valuable to the government and companies. Last week, we asked you to sound off on whether or not this smartphone surveillance bothers you – and what, if anything, we should do about it.

An officer was tailing two vehicles heading north from the border apparently in tandem, which was suspicious to the officer. An immigration checkpoint was ahead, so he didn’t intend to stop them. One pulled off when a “checkpoint ahead” sign was seen, and the officer stopped too. The emergency lights were turned on, and it was reasonable for the driver to believe he’d been stopped, but it was still consensual up to the point the officer saw marijuana. United States v. Holley, 2012 U.S. Dist. LEXIS 107882 (D. Ariz. June 13, 2012), adopted 2012 U.S. Dist. LEXIS 107983 (D. Ariz. August 2, 2012):*

Although the Government’s case here is arguably not as strong as it was in Al Nasser, it is similar to facts of Chan-Jimenez, but without the determinative retention of the license and registration. Though a closer case than either of those, the outcome is dictated by the application of the Ninth Circuit instruction that “[a] person is seized when he is ‘meant to be stopped by [a particular law enforcement action] … and [is] so stopped.'” Al Nasser, 555 F.3d at 731. Here, Holley voluntarily stopped and there is no evidence that indicates Agent Alvarenga activated his lights meaning to stop him. While the lights may have caused Holley, or any reasonable person, to believe he was seized, that was not the will of Agent Alvarenga and therefore the encounter was consensual and no seizure occurred until the agent saw the marijuana in the vehicle.

So this was consensual stop or not? Since the officer didn’t mean to “stop” him and he was already stopped, it was consensual even though the driver thought he couldn’t leave. I don’t quite get it.

A Texas DPS officer pulled up behind defendant and defendant slowed down. This did not create reasonable suspicion that he was impeding traffic. United States v. Coleman, 2012 U.S. Dist. LEXIS 107614 (E.D. Tex. July 10, 2012).*

The fact the DEA officer was not found credible during a prior state proceeding on a search when he was a Texas DPS officer did not amount to a Brady issue because he was not found to have lied or perjured himself. Besides the guilty plea waived the Brady claim. Brewer v. United States, 2012 U.S. Dist. LEXIS 107569 (N.D. Tex. July 20, 2012).*

The officer at defendant’s door could see crack cocaine on the table behind him in the house, and that justified a warrantless entry to preserve the evidence when it became apparent that defendant knew the officer’s intention. Alternatively, this was justified as a parole search. United States v. Patterson, 2012 U.S. Dist. LEXIS 106568 (W.D. Tenn. March 30, 2012).*

NYTimes.com Editorial: DNA and the Fourth Amendment:

Earlier this year, Maryland’s highest court held that collection of DNA samples from people arrested but not yet convicted violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. Last week, Chief Justice John Roberts Jr. stayed that ruling while the Supreme Court decides whether to hear Maryland’s appeal of the state court decision. The Supreme Court should take up this case, but there was no good reason for the chief justice to allow the police to continue collecting DNA while the case is on appeal.

Defendant was stopped for walking on the roadway, and his patdown was unreasonable because there was no fear of weapons and defendant was completely cooperative. The state’s alternative argument that a patdown was needed before putting defendant in the police car was also rejected. State v. Baber, 2012 Ohio 3467, 2012 Ohio App. LEXIS 3045 (8th Dist. August 2, 2012).

The officer responded to a 911 call of an overdose, and he entered [with what appeared to be clear consent from defendant’s mother] to see what was going on, and defendant assaulted him. The separate crime against the officer is not suppressible because her assault is an intervening circumstance. State v. Hammer, 2012 Ohio 3497, 2012 Ohio App. LEXIS 3083 (2d Dist. August 3, 2012).*

The facts and circumstances showed reasonable suspicion for a stop and then probable cause for defendant’s arrest for OVI. City of Parma Heights v. Dedejczyk, 2012 Ohio 3458, 2012 Ohio App. LEXIS 3049 (8th Dist. August 2, 2012).*

Pulling up to an already stopped vehicle and turning on the emergency lights is not per se a stop. United States v. Holley, 2012 U.S. Dist. LEXIS 107983 (D. Ariz. August 2, 2012).*

Collective knowledge supported reasonable suspicion and probable cause for a stop and search in an alien smuggling case. A cell phone was recovered and a search warrant obtained. A mistake in the application as whether the passenger or driver was on the phone was not material for Franks purposes. United States v. Cruz-Grijalva, 2012 U.S. Dist. LEXIS 107940 (D. Ariz. July 13, 2012).*

While the initial robbery report did not have a description of the car, police found a car with occupants matching their description and observed it, ultimately getting probable cause to believe that the car was involved, thus permitting a search of the car. United States v. Burnett, 2012 U.S. Dist. LEXIS 107341 (E.D. Pa. August 1, 2012).*

Zwillgen.com: Law Across the Wire and Into the Cloud: Twitter to Appeal Ruling That the Fourth Amendment Does Not Protect Public Tweets by Melissa Maalouf:

A lawyer for Twitter recently announced through a tweet that the company intends to appeal the recent decision of a New York criminal court that an Occupy Wall Street protester’s tweets are not protected by the Fourth Amendment.

In State v. Harris, the issue was whether Twitter must comply with a subpoena requesting all user information for the protester and tweets on his account between September and December 2011, including tweets that were no longer visible because new ones had crowded them out. In April, the court denied the protester’s motion to quash the subpoena, holding that he did not have standing because the subpoena was issued to Twitter. Following the ruling, Twitter filed its own motion to quash the subpoena.

Of course it’s through a tweet.

Merely being an “overnight guest” confers no standing. A party guest who spent the night was not entitled to standing because of no luggage or stuff. State v. Jeffries, 2012 Tenn. Crim. App. LEXIS 570 (July 31, 2012):

The items in appellant’s possession on the night of January 4th were typical items that an individual would carry on a regular basis: a cellular telephone, cigarettes, a lighter, and a jacket. The purpose of appellant’s visit to Ms. Albright’s apartment was to “play some cards, drink some beers, and relax….” Appellant’s reliance on the fact that he moved freely about the apartment, storing and retrieving his beer from the refrigerator and using the bathroom, is unpersuasive to our determination of whether he had a reasonable expectation of privacy in the apartment. Appellant’s leaving his jacket behind is also not pertinent. A party guest who spends the night at a residence does not clothe himself with an expectation of privacy therein. State v. Patterson, 966 S.W.2d 435, 441 n.5 (Tenn. Crim. App. 1997); State v. Transou, 928 S.W.2d at 957-58 (Tenn. Crim. App. 1996). Appellant failed to establish that he resided at her apartment or was an overnight guest rather than a “party” guest. Patterson, 966 S.W.2d at 441 n.5. Appellant did not have a reasonable expectation of privacy that would confer standing to challenge law enforcement’s search of Ms. Albright’s apartment.

ABAJ.com: Kansas City Police Say 7M License Plate Shots Showing Date, Time and Location Are a Public Record by Martha Neil:

In the wake of an American Civil Liberties Union campaign launched this week to determine how much information from automatic vehicle license plate readers is being stored by law enforcement agencies nationally and how the database is being used, police statistics are starting to hit the headlines.

In Kansas City, police have stored about 7 million plate numbers over the past two years. The records show the date, time and the vehicle’s exact location when the plate snapshot was taken, reports the Kansas City Star.

Almost as good as GPS but without the trespass.

Douglas B. McKechnie, Don’t Daze, Phase, or Lase Me, Bro! Fourth Amendment Excessive-Force Claims, Future Nonlethal Weapons, and Why Requiring an Injury Cannot Withstand a Constitutional or Practical Challenge, 60 Kan. L. Rev. 139 (2011), on SSRN.

In a child pornography investigation, the government had information that specific CP files were downloaded from a “host computer” with a specific IP address. The government was able to link defendant to the host computer, and obtained a search warrant for it. While there were three pages of boilerplate about how P2P worked that could be disregarded, the meat of the affidavit clearly showed probable cause as to defendant’s computer. United States v. Gozola, 2012 U.S. Dist. LEXIS 106000 (D. Neb. July 10, 2012), adopted 2012 U.S. Dist. LEXIS 103925 (D. Minn. July 26, 2012):

Further, boilerplate language concerning previous investigations serves no purpose toward establishing probable cause and must be disregarded. Ybarra v. Illinois, 444 U.S. 85, 90, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979) (search must be supported by probable cause particularized to defendant); see also United States v. Weber, 923 F.2d 1338, 1345-46 (9th Cir. 1991) (boilerplate statements “may have added fat to the affidavit, but certainly no muscle”).

Boilerplate will always be there because the affiant will always justifiably fear not giving enough for the search warrant. How many affidavits for search warrants have you read where the PC was in one or two sentences? The boilerplate is just prelude, but ultimately necessary to show the context. It can lead to cut and paste errors, but they will almost always be disregarded unless prejudice shown.

Defense counsel was not ineffective for not raising Jones GPS issues in 2009 because it was novel at the time. United States v. Reaves, 2012 U.S. Dist. LEXIS 107278 (D. Neb. August 1, 2012):

Reaves cannot show that counsel’s actions were unreasonable. Counsel is not deficient for raising an argument that may have had merit, but was “a wholly novel claim at the time.” Anderson v. United States, 393 F.3d 749, 754 (8th Cir. 2005).Reaves was arrested and went to trial in 2009. In 2009, neither the United States Supreme Court nor the Eighth Circuit had addressed whether GPS tracking of a cell phone constituted a search or seizure within the meaning of the Fourth Amendment. In 2012, four Justices of the United States Supreme Court noted that the availability of cell phones and other forms of technology that provide GPS information “will continue to shape the average person’s expectations about the privacy of his or her daily movements” but the Court did not, in that case, have the opportunity to consider whether GPS tracking on such technology was a search or seizure. United States v. Jones, 132 S. Ct. 945, 963 (2012) (Alito, J. concurring in judgment). In 2009, raising GPS tracking of cell phones as a search or seizure was a novel claim, and counsel was not deficient for not raising it.

Defendant’s guilty plea waived the search issue for appeal, and defendant can’t show that he would have won it if was appealed. United States v. Chandler, 2012 U.S. Dist. LEXIS 107123 (E.D. Ark. August 1, 2012).*

A valid stop led to a plain view of the silhouette of a gun, and that justified seizing the gun. United States v. Schuett, 2012 U.S. Dist. LEXIS 106610 (N.D. Mich. July 31, 2012).*

Officers arriving at the scene saw defendant choking a woman who was calling for help. The entry was justified. After police were in the house, she consented to a search while defendant was in the police car. His request that they “secure the house” was not a sufficient statement under Randolph to be an objection to the search. United States v. Oakes, 2012 U.S. Dist. LEXIS 107023 (W.D. N.Y. May 15, 2012), adopted 2012 U.S. Dist. LEXIS 107035 (W.D. N.Y. July 31, 2012).

Nobody in the borrowed car had standing except the defendant who borrowed it from his girlfriend. The information in the radio call from the crime victims was generally consistent with the description of the vehicle and occupants when it was stopped. United States v. Burnett, 2012 U.S. Dist. LEXIS 107341 (E.D. Pa. August 1, 2012).*

“The Section 2703(d) standard [for cell phone records data] is lower than that of probable cause.” “This Court agrees that the time may indeed have arrived to reevaluate the Fourth Amendment framework as it applies to new technologies. Nevertheless, under the existing Fourth Amendment jurisprudence, this Court finds Smith to require the result set forth in this opinion.” United States v. Valencia, 2012 U.S. Dist. LEXIS 105553 (D. Neb. July 30, 2012):

The Section 2703(d) standard is lower than that of probable cause. In re Application, 620 F.3d 304, 313 (3d Cir. 2010); United States v. Warshak, 631 F.3d 266, 291 (6th Cir. 2010). As the Third Circuit has described this standard, the Government must state “specific facts in its application[] that provide[] a basis for believing that [the person whose cell phone records are being sought] [is] a suspect and that cell phone records [are] relevant to solving the case.” United States v. Powell, 444 F. App’x 517, 520 n.4 (3d Cir. 2011). Similarly, in a case involving an order under Section 2703(d) requiring an Internet service provider to reveal the Internet protocol address assigned to a particular screen name as well as other attendant information, the Tenth Circuit upheld the issuance of the order where it found that the details set forth in the application were specific and “certainly would lead to a reasonable suspicion” that [the person using the screen name for which the information was sought] was involved in [a crime].” United States v. Perrine, 518 F.3d 1196, 1203 (10th Cir. 2008).

The Application at issue in this matter crosses the Section 2703(d) bar. First, the Application includes numerous specific and articulable facts surrounding the armed robbery that occurred on October 1, 2010; the preparations made for that robbery; Defendant’s alleged ties to the one known participant in the robbery (at the time of the cell-site Application); and Defendant’s alleged skill set and modus operandi for stealing cars like the ones involved in the robbery.

United States v. Madison, 2012 U.S. Dist. LEXIS 105527 (S.D. Fla. July 30, 2012) (same).

Defendant was pulled over for driving with his horn continuously blowing. When the officer found him, he said that he had to urinate really bad and was rushing to a place to relieve himself. The officer told him sit there and wait. He couldn’t wait, so he got out of the car and urinated at the side of the road, and the officer arrested him for public indecency. When defendant said his horn was stuck, the purpose of the stop was over, and it was unreasonable to detain him [probably just to cause discomfort]. The officer did not discover defendant was drunk until he got out to relieve himself and he staggered. The arrest was unlawful and the motion to suppress should have been granted. State v. Wilcox, 2012 Ohio 3400, 2012 Ohio App. LEXIS 2992 (2d Dist. July 27, 2012).*

Controlled delivery of firearms to CI under visual and audio surveillance was probable cause. State v. Shabazz, 2012 Ohio 3367, 2012 Ohio App. LEXIS 2960 (8th Dist. July 26, 2012).*

The Hill: Senator wants to require warrant for GPS tracking in cybersecurity bill by Jennifer:

Sen. Ron Wyden (D-Ore.) plans to offer an amendment to cybersecurity legislation that would require law enforcement officials to procure a warrant before obtaining location data from a person’s cell phone, laptop or other gadgets.

The bill — called the Geolocation Privacy and Surveillance (GPS) Act — hasn’t seen any action since Wyden introduced it last year with Rep. Jason Chaffetz (R-Utah). With the August recess and the presidential election on the horizon, the cybersecurity bill could be Wyden’s last chance to move the GPS measure through the 112th Congress.

Defendant was stopped for suspicion of DUI drugs, and it normally took ten minutes to write a citation. There was no suggestion that being under the influence meant possession. Here the officer took 36 minutes as he stalled around for the drug dog to get there, and that was unreasonable because it became a criminal search. “The primary purpose of the exclusionary rule is to remove incentive from the police to violate the Fourth Amendment.” [sure not citing Herring]. State v. Elliott, 2012 Ohio 3350, 2012 Ohio App. LEXIS 2944 (7th Dist. July 11, 2012).

State supported the legality of its DUI checkpoint. City of Ashtabula v. Presciano, 2012 Ohio 3418, 2012 Ohio App. LEXIS 3020 (11th Dist. July 30, 2012).*

Rehearing en banc was granted this week by the Ninth Circuit on whether the Fourth Amendment bars seizure of DNA from felony arrestees; Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012), rehearing en banc granted 10-15152 (9th Cir. July 25, 2012). See LATimes.com: Federal appeals court to reconsider California DNA-collection law by Maura Dolan. (Note that the en banc grant vacates the panel decision in the Circuit: “The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.”

Prior post from Feb. 23 reposted: CA9 upholds DNA testing on an arrest with probable cause. Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012):

We assess the constitutionality of the 2004 Amendment by considering the “totality of the circumstances,” balancing the arrestees’ privacy interests against the Government’s need for the DNA samples. Law enforcement officials collect a DNA sample from a buccal swab of the arrestee’s mouth, a de minimis intrusion that occurs only after a law enforcement officer determines there is probable cause to believe that the individual committed a felony. Law enforcement officers analyze only enough DNA information to identify the individual, making DNA collection substantially similar to fingerprinting, which law enforcement officials have used for decades to identify arrestees, without serious constitutional objection. Moreover, state and federal statutes impose significant criminal and civil penalties on persons who misuse DNA information. On the other side of the balance, DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects. After weighing these factors, we conclude that the Government’s compelling interests far outweigh arrestees’ privacy concerns. Thus, we hold that the 2004 Amendment does not violate the Fourth Amendment, and we affirm.

CA9 upholds DNA testing on an arrest with probable cause. Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012):

We assess the constitutionality of the 2004 Amendment by considering the “totality of the circumstances,” balancing the arrestees’ privacy interests against the Government’s need for the DNA samples. Law enforcement officials collect a DNA sample from a buccal swab of the arrestee’s mouth, a de minimis intrusion that occurs only after a law enforcement officer determines there is probable cause to believe that the individual committed a felony. Law enforcement officers analyze only enough DNA information to identify the individual, making DNA collection substantially similar to fingerprinting, which law enforcement officials have used for decades to identify arrestees, without serious constitutional objection. Moreover, state and federal statutes impose significant criminal and civil penalties on persons who misuse DNA information. On the other side of the balance, DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects. After weighing these factors, we conclude that the Government’s compelling interests far outweigh arrestees’ privacy concerns. Thus, we hold that the 2004 Amendment does not violate the Fourth Amendment, and we affirm.

Changes from the 90s: DNA was taken by blood and resulted in only a few exonerations. The change in both made this possible.

Update: Rehearing en banc granted July 25, 2012, and this is republished July 28th. This opinion is now vacated by the grant and can’t be cited.

Thomas K. Clancy of West Virginia University College of Law has posted The Importance of James Otis, 82 Miss. L. J. __ (2012) on SSRN. Abstract:

Historical analysis remains a fundamentally important tool to interpret the words of the Fourth Amendment and no historical event is more important that James Otis’ argument in the Writs of Assistance Case in 1761. The Writs case and the competing views articulated by the advocates continue to serve as a template in the never-ending struggle to accommodate individual security and governmental needs. In that case, James Otis first challenged British search and seizure practices and offered an alternative vision of proper search and seizure principles. No authority preceding Otis had articulated so completely the framework for the search and seizure requirements that were ultimately embodied in the Fourth Amendment. More fundamentally, Otis’ importance then and now stems not from the particulars of his argument; instead, he played and should continue to play an inspirational role for those seeking to find the proper accommodation between individual security and governmental needs. Otis proposed a framework of search and seizure principles designed to protect individual security. James Otis, his vision, and his legacy have become largely forgotten outside a small circle of Fourth Amendment scholars. This essay is a modest attempt to recall his importance for contemporary construction of the Fourth Amendment.

If you’ve been around, you’ve seen me wax on about Otis and, among other things, the 250th anniversary of his argument on the Writs of Assistance in Boston in February 2011.