After the police entered with consent to seize ammunition, they saw other relevant stuff and they were able to “coax” an expanded consent with defendant’s wife, and it was effective. State v. Niles, 2012 Tenn. Crim. App. LEXIS 362 (June 1, 2012):

Although the record shows that Niles’s wife initially objected to the detectives’ attempts to seize the entire date planner and its contents and the computer, Niles’s wife and the detectives were able to reach an acceptable compromise regarding these items. Niles’s wife acknowledged at the suppression hearing that she consented to the detectives’ photographing parts of the planner and seizing documents inside the planner. Although Niles’s wife and William Niles testified that the detectives exceeded the scope of her consent, the trial court accredited the testimony of Detectives Crews and Merlo on that issue. As we have stated, “[q]uestions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” See Odom, 928 S.W.2d at 23. Moreover, because the evidence from the computer and the letters between Niles and the victim were never admitted at trial, any issue regarding suppression of this evidence is moot. Accordingly, we conclude that the trial court did not err in denying Niles’s motion to suppress.

A website on dealing with United States v. Jones in the future: usvjones.com:

USvJones.com
How to Define Fourth Amendment Doctrine for Searches in Public?

Papers due June 4th, if you’re interested. A meeting in DC June 7-8.

Police arrived at the location of a 911 call that was just ending when they saw a man fitting the description of a man with a gun. All things considered, that was reasonable suspicion and not a generic discovery of this defendant. United States v. Willis, 2012 U.S. Dist. LEXIS 75858 (N.D. Okla. June 1, 2012)*:

In this case, police heard a dispatch that a black man wearing a gray shirt was present at a disturbance with a gun at a specific address. Officers Hamm and Zeller immediately responded to the dispatch and drove to the address. They arrived at the address within two minutes of hearing the dispatch, and they found a black man wearing a gray shirt about a block away from the 911 caller’s house. … [¶] Although not cited by the parties, the Court finds that the Supreme Court’s decision in Florida v. J.L., 529 U.S. 266 (2000), is relevant to the Court’s determination as to whether Officers Hamm and Zeller had reasonable suspicion to initiate a stop. …

Considering the evidence known to Officers Hamm and Zeller before initiating the stop, the Court finds that the stop was reasonable from its inception. Defendant bore a reasonable resemblance to person described by the dispatcher and he was found near the 911 caller’s house. Officers Hamm and Zeller arrived at 911 caller’s house about two minutes after hearing the dispatch, and it was reasonable for them to believe that the black male wearing a gray shirt was the same person described by the dispatcher. The Court gives particular weight to the close geographical proximity of the defendant to the caller’s house and the temporal proximity of the events. Officers Hamm and Zeller arrived at the 911 caller’s house almost before the 911 call was completed and they found a person matching the description provided to them. The Court also notes that this was a residential area, not a commercial or high traffic area, and police were not confronted with a situation where they were likely to find numerous persons meeting a generic description. …

The government’s motion to compel DNA samples is granted. Defendants are already indicted, and it needs to test the samples to confirm a CODIS match. The government also has shown probable cause for the sample. United States v. Sexton, 2012 U.S. Dist. LEXIS 75847 (W.D. Wash. May 31, 2012):

The Court notes that “the obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels—the ‘seizure’ of the ‘person’ necessary to bring him into contact with government agents and the subsequent search for and seizure of the evidence.” Dionisio, 410 U.S. at 8 (internal citation omitted). In this case, the first level is not at issue. An indictment has been returned against each Defendant, Dkt. # 23, and a neutral magistrate has found probable cause to seize each Defendant, Dkt. # 1. The Court thus moves to the second level question: whether, “‘given all the circumstances set forth in the affidavit before [the Court] … there is a fair probability that contraband or evidence of a crime will be found in a particular place.'” United States v. Tan Duc Nguyen, 673 F.3d 1259, 1263 (9th Cir. 2012) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).

. . .

Moreover, the Court sees no reason to deny the United States’ request as to the DNA or the fingerprints simply because the United States may have already procured similar samples. As the United States explains, the laboratory requests new DNA samples in order to confirm that the CODIS record is accurate. Frankly, this is not only logical, but reassuring. It minimizes the risk that an erroneous positive will result in the conviction of an innocent defendant. And while Defendants may have been fingerprinted already in this case, major case prints—a far more thorough recording of all the friction detail ridges covering the hand—have not been obtained.

The Knights reasonable suspicion standard applies to persons on federal supervised release. The USPO had RS, too. United States v. Lykins, 2012 U.S. Dist. LEXIS 74655 (E.D. Ky. May 30, 2012):

Knights is also applicable despite Defendant’s status as a supervised releasee. Knights specifically addressed the warrantless search of a probationer’s home. However, other courts have applied Knights’ reasonable suspicion analysis to the search of a supervised releasee’s residence. See, e.g., United States v. Krug, No. 3:09cr257, 2010 WL 2196607, at *4-5 (M.D. Tenn. May 26, 2010). Moreover, other circuits have recognized that supervised releasees and probationers have similar expectations of privacy. See United States v. Stewart, 532 F.3d 32, 36 (1st Cir. 2008) (recognizing that probation and supervised release are different forms of conditional release, and courts have not distinguished among conditional releasees for Fourth Amendment purposes); United States v. Weikert, 504 F.3d 1, 12 (1st Cir. 2007) (refusing to distinguish the privacy interests of a supervised releasee from a probationer); United States v. Zimmerman, 514 F.3d 851, 855 (9th Cir. 2007) (treating probationer’s Fourth Amendment challenge to DNA Act as foreclosed by prior precedent addressing challenge by supervised releasee); Banks v. United States, 490 F.3d 1178, 1187 (10th Cir. 2007) (supervised releasees and probationers fall into the “category of felons on release who are not entitled to the full panoply of rights and protections possessed by the general republic”). In fact, the Second Circuit has held that supervised release places the most severe limits on expectations of privacy, greater than those of both parole and probation. United States v. Balon, 384 F.3d 38, 44 (2d Cir. 2004). Therefore, Defendant, as a supervised releasee, had the same, if not less, expectation of privacy as did the probationer in Knights. As a result, Knights’ holding that the Fourth Amendment requires “no more than reasonable suspicion to conduct a search” of a probationer applies to the search of Defendant’s residence. See Knights, 534 U.S. at 121.

Strong chemical smell outside a building to a trained officer was probable cause for issuance of a search warrant for the house for meth. United States v. Collins, 2012 U.S. Dist. LEXIS 74639 (W.D. Okla. May 30, 2012):

The officer reporting the smell in this case, Undersheriff King, had attended both DEA and OBN schools regarding methamphetamine laboratories. Although it could have been more specific, the search warrant affidavit did state that the undersheriff was able to identify the odor because of his “training [and] experience with methamphetamines lab.” Search Warrant, Attachment “B.” As noted by defendant Smith, the affidavit did not specify the exact source of the odor. However, it is apparent that the smell was coming from a building on the Smith property and not a field (“drove by described residence in Attachment “A,” and detected a very strong odor of Anhydrous Ammonia and Ether”). The affidavit also was not defective for failing to explicitly link the odor to a crime, since the specific chemical odor that is identified is commonly linked to the manufacture of methamphetamine. While the affidavit submitted to the state judge was certainly bare bones, the court concludes it was sufficient, in light of the flexible standard referenced above, to support issuance of the warrant.

Boston Occupier Free Press: CISPA Follows SOPA in Attacking Internet Freedom by Kendra Moyer

The Cyber Information Sharing and Protection Act (CISPA) was drafted by Representative Mike Rogers (R-Michigan) with the stated intention of protecting consumers and business owners by reducing intellectual property theft, identity theft, and perceived “cyber threats.” The bill was passed by the House of Representative in April 2012, as an amendment to the National Security Act of 1947. It has not yet come up in the Senate.

Those concerned with civil rights, privacy, and the freedom of information have expressed strong concerns about the bill.

Findlaw: First Arrest by Pilotless Drone Raises Fourth Amendment Questions:

The first American citizen to be arrested with the help of a pilotless drone in the U.S. is claiming his legal rights were violated when a drone flew overhead during a stand-off with police.

The Lakota, North Dakota, resident held police off for nearly 16 hours as he threatened to kill anyone who came on his property. (The stand-off took place over the ownership of six cows that had made their way onto the man’s property.)

The Department of Homeland Security eventually got involved. It used a drone to accurately pinpoint the man’s location on his farm. Then the arrest was made.

The novel facts of the case seem settled, but the outcome is not.

Slate.com: Safe Data: Amending the Constitution to protect informational privacy by Adam Cohen:

When the National Security Agency spying scandal broke in 2005, it revealed that the government was engaged in a sweeping program of surveillance of its own citizens. As technology advances, the ability of the government to spy on ordinary Americans is growing rapidly. The government has sophisticated methods of intercepting phone calls and Internet traffic. And the FBI has just told Congress it wants to expand its ability to monitor Web-based communications, including Facebook and Twitter, in part by requiring these services to build special “back doors” for the government to use for monitoring. We are also being observed every day by spy cameras, throughout major cities and suburban shopping malls. The public has no way of knowing how much information the government is collecting and what it is being used for.

LATimes: Who’s got your back online? by Michelle Maltais:

Twitter may be full of a bunch of followers, but the social networking site has proved itself a leader when it comes to protecting its users’ privacy.

In an annual survey of who’s got your back, the Electronic Frontier Foundation gave Twitter three and a half gold stars out of four. New to the list this year, Sonic.net was the only four-star company.

EFF examined the policies of 18 major Internet companies to assess whether they publicly commit to standing with users when the government seeks access to user data. The companies included email providers, ISPs, cloud-storage providers, and social networking sites.

Speaking of the “mosaic theory”:

Most cell phone providers keep location data for a year. AT&T has it going back to 2008.
–Jim Harper, Director of Information Policy Studies, The Cato Institute (June 1, 2012)

As cells get smaller, the tracking data gets more accurate.
–Greg Najeim, Senior Counsel, Center for Democracy & Technology (June 1, 2012)

[I just added it up: There were 1572 posts to this website 6/1/11-5/31/12]

TheHill.com: ACLU backs Twitter’s bid to hide user information by Brendan Sasso:

The American Civil Liberties Union (ACLU) filed a brief in a New York state court on Thursday supporting Twitter’s effort to avoid handing over the personal information of one of its users to the police.

New York City prosecutors had served Twitter with a subpoena for its data on Malcolm Harris, who was arrested for disorderly conduct during an Occupy Wall Street protest. The prosecutors asked Twitter for Harris’s email address and all of his tweets in a three-month period.

Twitter argued that police would need a search warrant to access the communications. The court had concluded that Harris lacked the legal standing to challenge the subpoena on his own, but Twitter argued that its users have the authority to protect their own tweets.

Reuters: Legal battle over Twitter subpoena heats up.

The Amvest Post, a private club, had an Ohio liquor license, and health inspectors showed up to investigate complaints of violation of the Ohio’s Smoke Free Workplace Act, and they went into areas not open to the public. The entry and inspection did not violate the Fourth Amendment because the club was closely regulated under New York v. Burger. Amvets Post #711 v. Rutter, 2012 U.S. Dist. LEXIS 74743 (N.D. Ohio May 30, 2012):

Ohio’s Smoke Free Act authorizes warrantless administrative searches to protect its citizens against the well-documented dangers of and harms from secondhand smoke. The regulation complies with the requirements the Supreme Court set out in Burger. The Act, therefore, does not violate plaintiff’s Fourth Amendment rights. Because defendants have not violated plaintiff’s constitutional rights, they are entitled to dismissal of plaintiff’s complaint.

[Note: The court does not differentiate between the liquor licensing authorities and the health department. The point of Burger is the expectation of privacy vis-a-vis one’s license. What about inspections unrelated to the license, like here?]

The officer was suspicious of defendant who would not remove his hands from his pockets during an encounter, and he directed defendant to remove his hands, but only one was pulled out. This was reasonable suspicion defendant was armed. United States v. Manuel, 2012 U.S. Dist. LEXIS 73703 (W.D. Mo. May 8, 2012).*

Defendant was properly seized incident to his arrest, the court finding it was in his hand. Thereafter, a search warrant was issued for the phone, which was valid. United States v. Bass, 2012 U.S. Dist. LEXIS 73783 (E.D. Mich. May 29, 2012).*

Police responding to a burglary in progress call from a pawnshop’s burglar alarm had reasonable suspicion to stop a vehicle on the parking lot after hours. United States v. Von Bargen, 2012 U.S. Dist. LEXIS 73458 (D. Idaho May 25, 2012).*

Waiver of collateral attack in guilty plea was binding on defendant. There was no conditional plea, and defendant knew he was waiving the opportunity to challenge the search. United States v. Ramirez-Hernandez, 2012 U.S. Dist. LEXIS 73728 (E.D. Ky. April 16, 2012).*

Thomas K. Clancy, The Fourth Amendment’s Exclusionary Rule as a Constitutional Right (Ohio State Journal of Criminal Law, Vol. 10, 2012), posted on SSRN. Abstract:

I am a proponent of the view that the rule is constitutionally based and is an individual remedy for the violation of that person’s Fourth Amendment rights. Both sides of the exclusionary rule debate regarding whether it is a mere tool to enforce deterrence or whether it is an individual right-based remedy have weighty authority and supporters. In my view, the constitutionally-based argument is persuasive: in constitutional law, there can be no right without a remedy. Subsidiary arguments reinforce that view. Those include the absence of any rational or empirical justification for the rule if based on deterrence theory, the lack of authority of the Court to apply the rule to the states absent a constitutional basis, and the coherence of justification of exceptions to the rule’s application if constitutionally based, unlike the ad hoc deterrence rationale, which is a mere substitute for each justice’s subjective assessment as to whether to apply the sanction.

Fourth Amendment Search and Seizure, Qualified Immunity and the Technological Age by Muna Busailah and Stephen P. Chulak, 2012 (6) AELE Mo. L. J. 501 (June 2012):

This article examines two decisions, issued by the United States Supreme Court in January 2012, concerning the Fourth Amendment. The first, Ryburn v. Huff, #11-208, 132 S.Ct. 987 (2012), involves a civil rights action by homeowners against police officers from the City of Burbank, alleging that the officers’ entry into their home violated the Fourth Amendment. The Supreme Court reversed the decision of the Court of Appeal and held that the officers had a reasonable basis for fearing violence was imminent, which entitled them to qualified immunity.

In the second case, United States v. Jones, #10-1259, 132 S.Ct. 945 (2012), the Supreme Court ruled that the attachment of a Global-Positioning-System (GPS) tracking device to a vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, was a “search” within the meaning of the Fourth Amendment.

WSJ.com: U.S. Argues to Preserve GPS Tracking (paywall) by Julia Angwin and Jess Bravin:

The U.S. government told a federal appeals court Thursday that it still has the right to place Global Positioning System tracking devices on cars without obtaining a search warrant—despite a January Supreme Court ruling that the warrantless installation of such a device violated the Constitution.

In arguments aimed at preserving warrantless GPS tracking evidence in a case before the Ninth U.S. Circuit Court of Appeals, the Justice Department relied on the fact that the high court didn’t specifically state that a search warrant would be required in other situations.

From Crim Prof Blog:

The AALS Section on Criminal Justice will hold a panel during the AALS 2013 Annual Meeting in New Orleans entitled: Technology and Crime: The Future of the Fourth Amendment in Public.

. . .

New mass surveillance technologies are changing Fourth Amendment protections in public. Enhanced video cameras, GPS location devices, license plate readers, mobile body scanners, backscatter x-ray vans, facial recognition technology, drones, and satellite imaging, in combination, can all be directed at targeted geographic areas. Combined with, or replacing, traditional “stop and frisk” or police surveillance tactics, these technologies have the potential to alter Fourth Amendment protections. At the same time, intelligence-led policing strategies involving crime mapping and analysis have allowed law enforcement to identify areas of crime for targeted police intervention. This panel looks at the constitutional implications of these developments on the expectation of privacy.

Defendant company and its principal were accused of false statements on toxic waste reports. The state EPA got a search warrant from the judge overseeing a statewide grand jury, and the search warrant clearly contemplated digital documents which were reasonably seized via seizure of the hard drives rather than an onsite inspection. Other technical arguments were moot, including sealing the search warrant materials for a while. United States v. Blue Marsh Labs., 2012 U.S. Dist. LEXIS 73544 (E.D. Pa. May 24, 2012).*

Defendant was stopped by the police for DUI when the motorist behind him at a McDonald’s drive-thru at 4 am called the police that he was “drunk as hell,” giving the vehicle make, color, and license number. The officer corroborated the tip with the McDonald’s employee. That was cause for a stop. State v. Steinbrunner, 2012 Ohio 2358, 2012 Ohio App. LEXIS 2083 (3d Dist. May 29, 2012).*

Defendant consented to a search of his vehicle and cell phones were seized, and it took a long time for the government to get search warrants for the cell phones, which were evidence of a crime. The delay did not require suppression. United States v. Franklin, 2012 U.S. Dist. LEXIS 73692 (N.D. Ga. April 27, 2012), adopted in part 2012 U.S. Dist. LEXIS 73714 (N.D. Ga. May 25, 2012):

For all of the reasons stated above, Mitchell [United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009)] is distinguishable from the instant case and does not provide a basis for the suppression of Boykins’s cell phones.4 See United States v. Emanuel, 440 F. App’x 881, 885-86 (11th Cir. 2011) (“Because Emanuel gave his voluntary consent to the seizure and search of his computer, Mitchell is inapposite”); United States v. Stabile, 633 F.3d 219, 235 (3d Cir. 2011) (distinguishing Mitchell because the warrantless seizures in Mitchell were based on probable cause and not consent).

4 Boykins also relies heavily on United States v. Shaw, No. 1:11-cr-239-29-CAP-ECS, 2012 WL 844075 (N.D. Ga. Feb. 10, 2012), adopted by 2012 WL 843919 (N.D. Ga. Mar. 12, 2012) [here](granting defendant’s motion to suppress evidence where search warrant was not obtained until three months after cell phones were seized). However, Shaw is distinguishable because the seizure in that case was based on a search incident to arrest rather than consent. To the extent that Shaw is not distinguishable, I disagree with it and choose not to follow it. [The USDJ disagrees with this footnote.]