Where waving a weapon was reported to 911, handcuffs during a Terry stop and frisk was reasonable and not an arrest. United States v. Moore, 2012 U.S. Dist. LEXIS 71023 (E.D. Mich. May 22, 2012):

Defendant argues his seizure ripened into an arrest the moment he was handcuffed and thus required probable cause. (Def.’s Mot. at 6.) This Court disagrees. The Sixth Circuit considered a similar argument in Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809, 814 (6th Cir. 1999). In Houston, the court observed that “the use of handcuffs [does not] exceed the bounds of a Terry stop, so long as the circumstances warrant that precaution.” Id. at 815 (citing cases). It concluded that, because the defendant officers reasonably believed that the individuals stopped had been involved in a shooting, “their use of handcuffs and their detention of the men in the [police] cruisers were both reasonably necessary to protect the officers’ safety during the investigation … [and] were therefore ‘reasonably related’ to the investigation that warranted the initial stop.” Id. The same is true here. Based upon the facts provided to them from the in-person interview with the 911 caller, the officers that initially stopped Defendant had a reasonable belief that he was intoxicated, armed, and dangerous. Thus, their use of handcuffs before conducting a pat-down for weapons was reasonably necessary to protect their safety during the investigation that warranted the initial stop.

CBSDC: Groups Concerned Over Arming Of Domestic Drones:

With the use of domestic drones increasing, concern has not just come up over privacy issues, but also over the potential use of lethal force by the unmanned aircraft.

Drones have been used overseas to target and kill high-level terror leaders and are also being used along the U.S.-Mexico border in the battle against illegal immigration. But now, these drones are starting to be used domestically at an increasing rate.

Warrantless GPS tracking before Jones was a fishing expedition, and, “[i]n this case, the DEA agents had their fishing poles out to catch Lee.” The exclusionary rule had to apply, and the good faith exception would not be applied for lack of binding precedent in the circuit. United States v. Lee, 2012 U.S. Dist. LEXIS 71204 (E.D. Ky. May 22, 2012):

Finally, the “purpose and flagrancy of the official misconduct” weighs against attenuation. Brown, 422 U.S. at 604. This last factor is often the “most important,” United States v. Shaw, 464 F.3d 615, 630 (6th Cir. 2006), because “[t]he primary focus of attenuation analysis is whether or not the deterrent purpose of the exclusionary rule is served by suppression,” United States v. Gray, 491 F.3d 138, 155 (4th Cir. 2007) (Wilkinson, J.). Although the DEA agents’ misconduct was not flagrant, the Sixth Circuit has explained that police officers act with an unlawful purpose when they perform an “investigatory” search, that is, “when officers unlawfully seize a defendant “in the hope that something might turn up.'” United States v. Williams, 615 F.3d 657, 670 (6th Cir. 2010) (quoting Brown, 422 U.S. at 605); see also Shaw, 464 F.3d at 631 (noting that “Brown made it clear that the requisite “quality of purposefulness’ can be demonstrated when the [misconduct], in design and execution, is investigatory in nature”). The Seventh Circuit agrees that an illegal search has an unlawful purpose when it is “undertaken in an effort to advance the investigation or to embark on a fishing expedition.” United States v. Reed, 349 F.3d 457, 465 (7th Cir. 2003).

In this case, the DEA agents had their fishing poles out to catch Lee. Admittedly, the agents did not intend to break the law. But they installed a GPS device on Lee’s car without a warrant “in the hope that something might turn up.” Williams, 615 F.3d at 670. (quoting Brown, 422 U.S. at 605). When suspicious behavior did, in fact, turn up, they alerted the Kentucky State Police. By doing so, they set in motion a chain of events that ended with Lee’s arrest. Their unlawful purpose means that the third attenuation factor also weighs in favor of suppression.

Moreover, the Gross panel pointed out that allowing “post-hoc rationalization” by police would create the “perverse” incentive for police officers to detain any individual going about their daily routines in the hope of turning up an outstanding warrant. Gross, 662 F.3d at 405. The same perverse incentive is present here: if Lee’s seatbelt violation were an intervening circumstance, police could install tracking devices with impunity so long as they waited until the subject of their surveillance commits a minor traffic violation. Accord Maryland v. Wilson, 519 U.S. 408, 423 (1997) (Kennedy, J., dissenting) (describing the “almost countless circumstances” that allow the police to stop a vehicle). At that point, the police could stop them and search for evidence of illegal activity. Thus, the Court agrees with Judge Ingram that the police misconduct was guided by an impermissible purpose. See R. 33 at 16. Because none of the three factors favor attenuation, the Court must suppress all evidence that derived from Metzger’s illegal search, including the traffic stop, the search of Lee’s car, and his subsequent confession.

. . .

This Court is also not the first district court to confront the question of whether to apply the good-faith exception after Jones. In the Ninth Circuit, where binding circuit precedent authorized warrantless GPS monitoring, three district courts have applied the good-faith exception to defeat the defendant’s motion to suppress. United States v. Aquilar, No. 4:11-cr-298-BLW, 2012 WL 1600276, at *2 (D. Idaho May 7, 2012); United States v. Leon, No. CR 09-00452, 2012 WL 1081962, at *3 (D. Haw. Mar. 28, 2012); United States v. Nwobi, No. CR 10-952(C)GHK-7, 2012 WL 769746, at *3 (C.D. Cal. Mar. 7, 2012). A district court in the Eighth Circuit did the same, also holding that the officer’s reliance on binding circuit precedent triggered the good-faith exception. United States v. Amaya, No. CR-11-4065-MWB, 2012 WL 1188456, at *7-8 (N.D. Iowa Apr. 10, 2012). But in the Third Circuit, where there was no appellate ruling on warrantless GPS tracking, one district court refused to extend the good-faith exception. United States v. Katzin, No. 11-226, 2012 WL 1646894, at *9-10 (E.D. Pa. May 9, 2012). Applying the good-faith exception in the absence of binding appellate precedent would, in that court’s eyes, “effectively eviscerate the exclusionary rule.” Id. at *9. If law enforcement could “rely on non-binding authority, particularly in the face of other, contrary non-binding authority,” officers would “beg forgiveness rather than ask permission in ambiguous situations involving … basic civil rights.” Id.

See Wired.com: Pot Prosecution Goes Up in Smoke Due to Warrantless GPS Tracking by Kim Zetter.

Prosecutor’s opening statement reference to defendant’s refusal to consent to a search was reversible error in a possession case where the defendant denied knowledge a gun was in the car. Rose v. State, 2012 Fla. App. LEXIS 8026 (Fla. 1st DCA May 22, 2012):

We hold that the trial court erred by overruling Appellant’s objection and that this error was not harmless here. See Bravo v. State, 65 So. 3d 621 (Fla. 1st DCA 2011) (reversing conviction where trial court allowed impermissible testimony regarding defendant’s refusal to consent to search of home without a warrant); Gomez v. State, 572 So. 2d 952, 953 (Fla. 5th DCA 1990) (holding “[c]omment on a defendant’s denial of permission to search a vehicle, although not exactly the same thing as comment on a defendant’s right to remain silent, since the Fourth Amendment is involved rather than the Fifth, constitutes constitutional error of the same magnitude.”) (footnote omitted); see also Ramet v. State, 209 P.3d 268 (Nev. 2009) (holding that state may not introduce evidence that defendant refused to consent to warrantless search, as “defendant’s invocation of his Fourth Amendment right cannot be used as evidence of a crime or consciousness of guilt,” and citing Gomez and other federal and state decisions, but recognizing that error may be harmless).

Junichi P Semitsu, Arresting Development: Facebook Searches and the Information Super Highway Patrol, 65 Ark. L. Rev. 99 (2012)

Caren Myers Morrison, Passwords, Profiles, and the Privilege Against Self-Incrimination: Facebook and the Fifth Amendment, 65 Ark. L. Rev. 133 (2012)

These aren’t available for free on the law review’s website yet.

Crains New York: Big glitch in feds’ case against Spongetech by Aaron Elstein:

The government has majorly messed up its seemingly airtight case against the chief executive of Spongetech Delivery Systems, a New York-based maker of SpongeBob SquarePants sponges that allegedly faked 99% of its sales.

Last week, a federal judge ruled that reams of emails and other potentially damaging evidence couldn’t be used in court because the government took too long to examine the bounty.

My prior post on the case is here.

Five search warrants were executed after wiretaps. Defendant had standing as to his business and home, but not three others. There is no co-conspirator exception to standing for them (Padilla). There was “strong evidence” of probable cause supporting the search warrants, so the motion is denied as to all five. United States v. Kazarian, 2012 U.S. Dist. LEXIS 70050 (S.D. N.Y. May 18, 2012).*

Defendant had a “full and fair opportunity to litigate” his search claim which he waived by his guilty plea. The after the fact discovery by defendant that a witness on the search issue was not completely believable wasn’t good enough to undermine the plea. Balleza v. United States, 2012 U.S. Dist. LEXIS 69537 (N.D. Tex. May 17, 2012).*

Defendant’s 2255 claim that defense counsel failed to challenge warrantless searches fails without an allegation as to what those searches were and how he was prejudiced by it. Fuller v. United States, 2012 U.S. Dist. LEXIS 70813 (N.D. Ill. May 22, 2012).*

The State of Texas claimed a beach easement on plaintiff’s beachfront property following Hurricane Rita which moved the vegetation line back and put the house on the beach. The State’s effort to remove the house was a Fourth Amendment violation. Severance v. Patterson, 07-20409 (5th Cir. May 21, 2012) (per curiam):

The Texas Supreme Court answered our certified questions in this case, see Severance v. Patterson, 566 F.3d 490, 503-04 (5th Cir. 2009), by declaring that Texas law does not recognize a “rolling easement” created by avulsive events affecting the dry beach of Galveston’s West Beach. Severance v. Patterson, No. 09-0387, Tex S.Ct. April 19, 2012, op. on reh. For the panel majority, this answer reifies the claim of appellant Severance to an “unreasonable” seizure violative of the Fourth Amendment in the State’s assertion of an easement (and related regulatory violations) on her beachfront property following Hurricane Rita. (Judge Wiener continues to dissent on this portion of the prior and present dispositions.)

Because the potential existence of this constitutional claim is now confirmed, the district court’s judgment against Severance predicated on Fed. R. Civ. P. 12(b)(1) and (6) must be reversed.

Yosemite National Park officers came to a campsite to investigate disorderly conduct and a traffic offense and ordered everybody to sit at a table and show their hands. One lady refused to be patted down and then was threatened with being Tasered, and that was unreasonable under the circumstances. She was targeted only because she was with others who might be suspects. United States v. Mazzetti, 2012 U.S. Dist. LEXIS 69922 (E.D. Cal. May 17, 2012)*:

Based on the record before the Court, including the primary concern for the personal freedom of individuals who are suspected of having done nothing more than to have committed, and completed, a misdemeanor, the rangers had the right and duty to approach the group and question its individual members regarding possible criminal activity. However, they lacked the right to conduct an investigatory stop, i.e, restrain the liberty, of Defendant. They did restrain her. The restraints violated protections afforded her under the Fourth Amendment to the United States Constitution.

The Court does not discount nor denigrate the reasonableness and sincerity of Ranger Bellino’s belief that the restraints on Defendant’s freedom were necessary to ensure safety of himself and his fellow rangers dealing with members of a group which outnumbered the Rangers. The Court respects such concerns. History has shown that law enforcement personnel are regularly exposed to wholly unexpected, and all too often deadly, threats. However, our Constitution demands that such concerns be balanced against citizens’ rights to be free of unreasonable seizure of their persons. Thus, law enforcement may not take action to restrain the personal liberties of individuals based on purely theoretical safety concerns. Here, when Ranger Bellino arrived, nothing suggested to him that any member of the group had engaged in any serious crime or threat to public safety or posed an ongoing threat to Ranger Bellino or anyone else. There was no justification for using the threat of force to compel Defendant’s continued presence.

Craig M. Bradley, Is the Exclusionary Rule Dead? 103 J. Crim. L & Criminology 1 (2012):

In three recent decisions, Hudson v. Michigan, Herring v. United States, and last Term’s Davis v. United States, the Supreme Court has indicated a desire to severely restrict the Fourth Amendment exclusionary rule. A majority of the Justices wants to limit its application to cases where the police have violated the Fourth Amendment purposely, knowingly, or recklessly, but not where they have engaged in “simple, isolated negligence” or where negligence is “attenuated” from the discovery of the evidence. They have further suggested that evidence should not be excluded where the police have behaved as reasonable policemen, using the approach from United States v. Leon.

The Court’s new approach, based on the culpability of the police, is subjective, yet the Court insists that it does not probe the police’s mind. The new approach seems to reject negligence as the basis of exclusion, yet Leon is a negligence-based approach. The new approach assumes that “reckless” behavior can be deterred more readily than negligent behavior, but that is not obvious.

This Article reviews Hudson, Herring, and Davis, as well as the court of appeals cases that have applied Herring. It suggests that the Supreme Court has not eliminated the exclusionary rule and argues that the rule should still be applied in cases of “substantial” as opposed to “simple isolated” negligence—that is, when negligence has substantially interfered with a suspect’s privacy rights, such as through an illegal arrest or an illegal search of his car or house. It notes that none of the three cases decided by the Court involved such a substantial intrusion. It concludes, through a careful reading of the three cases, as well as examination of successful defense appeals in the courts of appeals, that the exclusionary rule, though limited, is neither dead nor unacceptably constrained.

Inspecific motion to suppress that was denied after a hearing was properly denied because the district court could not be expected to rule on an issue that was not specifically addressed to it (here, opening a container). United States v. Spotted Elk, 2008 U.S. App. LEXIS 24202 (8th Cir. November 26, 2008):

Federal Rule of Criminal Procedure 12(b)(3)(C) and (e) provides that motions to suppress evidence must be raised before trial or are waived, and the waiver provision “applies not only to the failure to make a pretrial motion, but also to the failure to include a particular argument in the motion.” United States v. Barajas-Chavez, 358 F.3d 1263, 1266-67 (10th Cir. 2004) (internal quotation marks omitted); see generally 1A Charles Alan Wright & Andrew D. Leipold, Federal Practice & Procedure Criminal § 193 at 424-26 (4th ed. 2008). The district court could hardly be faulted for failing to grant the suppression motion on the basis of facts not presented to it, and Blue Bird did not renew her motion in light of Jody Richards’ testimony. Even if Blue Bird had presented Jody Richards’ testimony at the motion to suppress, Richards’ testimony was contradicted by the trial testimony of Officer Harrison, who said the containers were not opened until the next day at the evidence facility. Presumably, the government would have countered Richards’ story with its contrary version of the facts. Therefore, even if we were to review this point for plain error, we would have to conclude that any error was not plain.

Bare bones suppression motion left the government partly in the dark as to the issue it needed to defend the search on. Therefore, this is a reasonable request to reopen the suppression hearing. United States v. Martinez, 2008 U.S. Dist. LEXIS 95678 (E.D. Tenn. November 19, 2008).*

Securing defendant’s apartment until a search warrant arrived was not a seizure of the stuff inside. United States v. Miller, 2008 U.S. Dist. LEXIS 95726 (E.D. Pa. November 24, 2008).*

Michigan refuses to apply inevitable discovery where the police were doing nothing to get a search warrant because, to hold otherwise, “diminishes the Fourth Amendment and is an incentive for improper or careless police practice.” People v. Hyde, 285 Mich. App. 428 (September 1, 2009):

But even under this more expansive application of the inevitable discovery doctrine, we conclude that the evidence here should have been excluded. Although there was a high level of probable cause to obtain a warrant and the same evidence–Hyde’s blood–would have been obtained pursuant to the eventual warrant, it is obvious that the police were not in the process of obtaining a warrant when they secured Hyde’s invalid consent. Officer Williams did not understand the implied consent statute exception for diabetics and did not attempt to correct his mistake once Hyde’s blood sample was obtained.

Moreover, the line of reasoning that does not permit the doctrine to apply is particularly persuasive when placed in the context of Michigan’s three concerns with applying the inevitable discovery doctrine–independent legal means, inevitability of use of the legal means and discovery of the evidence, and incentive for police misconduct or significant weakening of Fourth Amendment protections. 34 Based on the facts here, there was an independent legal means to obtain the evidence by securing a search warrant. The discovery of the evidence was also inevitable because it is undisputed that Officer Williams would have done so had he realized his error. Also, there was easily enough evidence to establish probable cause based on Hyde’s erratic driving, admission that he had been drinking, and his failure of two sobriety tests. However, the damage that would be done to the Fourth Amendment and the incentive for police misconduct by adopting the inevitable discovery doctrine under these circumstances outweigh these considerations. To allow a warrantless search merely because probable cause exists would allow the inevitable discovery doctrine to act as a warrant exception that engulfs the warrant requirement. Even in the context of a good faith error, we reject the notion that a post-hoc probable cause analysis can preclude the constitutional requirement that a neutral and detached magistrate issue the warrant. Such an approach diminishes the Fourth Amendment and is an incentive for improper or careless police practice.

Fierce GovernmentIT: Surveillance through GPS is not the same as using cellular tower data, say law enforcement officials by Molly Bernhart Walker:

The boundaries of surveillance are being called into question as the law enforcement community seeks continued warrantless access to electronically-generated location data while privacy advocates say a January 2012 Supreme Court case means all geolocation data is protected by the Fourth Amendment.

In the wake of the case (.pdf), United States v. Antoine Jones, two congressmen–Rep. Jason Chaffetz (R-Utah) and Bob Goodlatte (R-Va.)–have proposed a bill (H.R. 2168 [.pdf]) that would require law enforcement obtain a warrant before accessing any geolocation data. The Jones case ruled that the FBI could not attach a Global Positioning System device to a car without a warrant.

Where the arrest reports show defendant consented to a search, the defendant must file an affidavit in opposition to get a hearing to show a disputed fact. United States v. Rosario, 2012 U.S. Dist. LEXIS 69240 (S.D. N.Y. May 11, 2012).*

An AT&T technician visiting defendant’s house and working on his internet connection accessed the computer to see if it would connect to the internet and saw child pornography. This was not a government search. United States v. Jurek, 2012 U.S. Dist. LEXIS 70242 (N.D. Ohio May 21, 2012).*

Defendant was stopped on a motorcycle on the closed Quantico Marine base by a U.S. Marines police officer. The officer first thought he might be lost, but his demeanor suggested criminal activity of some sort, and the frisk of his back pack after he admitted there was a knife in there and had no DL was reasonable. United States v. Cooper, 2012 U.S. Dist. LEXIS 70001 (E.D. Va. May 18, 2012).*

The search warrant sought computer records for 2007, but the government’s computer search intentionally wasn’t limited and found incriminating records from 2003 and 2004. The government’s failure to limit the search violated the terms of the search warrant. Also, one defendant who had a desk and a computer in a common area had an expectation of privacy in both because nobody else used them. Moreover, the computer was password protected. United States v. Reeves, 2012 U.S. Dist. LEXIS 68962 (D. N.J. May 17, 2012):

In particular, Special Agent Cassin testified that he had the ability to limit his search to the calendar year 2007 and search for documents that were created and modified in 2007. He also had the ability to search for the year “2007” or “/07,” etc., in the body of the documents using a keyword search. Special Agent Cassin, however, testified that he did nothing to so limit his search and instead searched all the files on the Harbor House computers without regard to their date. Specifically, Special Agent Cassin disregarded the scope of the warrant by engaging in broad keyword searches of all the electronic files on the computers.

This is unreasonable and violates the Fourth Amendment. It is evident that Special Agent Cassin took no efforts to comply with the temporal scope of the warrant and disregarded the express date limitation contained therein. Special Agent Cassin did not conduct his search in a manner that minimized unwarranted intrusions upon privacy and his broad keyword search was more akin to “‘general, exploratory rummaging” in Harbor House’s computer files rather than a particular search in accordance with the express limitations of the search warrant. Andresen v. Maryland, 427 U.S. at 481. If the government felt they had enough probable cause to justify a search of Harbor House computers for all documents related to oysters and the Reeves Brothers, which is essentially what the government did, then the government needed to re-apply for a new warrant or put forth sufficient probable cause for such a broad search in their initial application. The government did neither in this case and thus their search is unreasonable as to the pre-2007 documents.

The government’s reliance on United States v. Stabile, 633 F.3d 219, 241-42 (3d Cir. 2011) is misplaced. In Stabile, the government inadvertently found child pornography files on the defendant’s computer while searching the computer for evidence of financial fraud. The discovery of the child pornography was inadvertent and immediately apparent due to the lurid names of the electronic files. Such files containing child pornography were in plain view of the searching agents and could thus be seized as evidence of crime.

The instant action is clearly distinguishable. There was no inadvertence by the government in finding the 2003 and 2004 incriminating documents at issue here. These documents would not have been retrieved if the search was limited pursuant to the terms of the search warrant which only authorized the government to search for documents created or modified from January 1, 2007 to December 31, 2007. The discovery of these two 2003 and 2004 documents was the result of the government’s overly broad keyword search. …

Plaintiff is civilly committed to the BOP having been found not guilty by reason of insanity in 2003 for an attempted airplane hijacking. The court concludes the DNA Act applies to him. Commey v. United States, 2012 U.S. Dist. LEXIS 70425 (D. Mass. May 21, 2012):

No court has addressed the constitutionality of the DNA Act as applied to individuals civilly committed to BOP custody after being found not guilty by reason of insanity. In Weikert, the First Circuit applied the general Fourth Amendment totality of the circumstances analysis, balancing Weikert’s expectation of privacy against the government’s interest in taking his DNA. 504 F.3d at 11. Applying this analysis to Commey, civilly committed persons have a diminished expectation of privacy. Both the Supreme Court and First Circuit have compared the liberty interests of civilly committed persons to those of pretrial detainees. See Youngberg v. Romeo, 457 U.S. 307, 320 (1982); Davis v. Rennie, 264 F.3d 86, 102, 108 (1st Cir. 2001) (applying to civilly committed persons the legal standard for Fourth Amendment seizure claims brought by pretrial detainees). The Eighth Circuit has explicitly held that, when considering whether a particular search violates the Fourth Amendment, civilly committed persons have the same expectation of privacy as pretrial detainees. See Serna v. Goodno, 567 F.3d 944, 948-49 (8th Cir. 2009). In Mitchell, the Third Circuit balanced pretrial detainees’ expectation of privacy against the government’s interest in taking their DNA, and held that the DNA Act does not violate pretrial detainees’ Fourth Amendment rights. 652 F.3d at 416.

Based on this caselaw, the court concludes that the government’s important interests in monitoring and rehabilitating civilly committed persons, solving crimes, and exonerating innocent individuals outweigh Commey’s privacy interests, given his status as a civilly committed person, “the relatively minimal inconvenience occasioned by a blood draw, and the coding of genetic information that, by statute, may be used only for purposes of identification.” Weikert, 504 F.3d at 14.

Therefore, the DNA Act as applied to Commey does not violate the Fourth Amendment.

Defendant’s arrest for counterfeiting, for which there was clearly probable cause, justified a search incident of his backpack. There was also concern for officer safety. United States v. Pittman-Wright, 2012 U.S. Dist. LEXIS 69347 (N.D. Cal. May 17, 2012).*

Consent search and false arrest claims fail on the merits for valid consent and an arrest warrant. Southerland v. Garcia, 2012 U.S. App. LEXIS 10020 (2d Cir. May 18, 2012).*

There was probable cause for issuance of this search warrant in a bank robbery case based on the video of the robbery, an anonymous caller, and surveillance of the defendant’s house. Defendant’s assertion that the color of the house was slightly off and other houses in the neighborhood could have been described as well wasn’t sufficient to overcome the warrant. The suspect vehicle was parked in the driveway. United States v. Allen, 2012 U.S. Dist. LEXIS 68902 (W.D. Mo. April 24, 2012),* adopted 2012 U.S. Dist. LEXIS 68901 (W.D. Mo. May 17, 2012).*

NYTimes Editorial: The Right to Record:

The Civil Rights Division of the Justice Department took an important stand last week, declaring that citizens have a First Amendment right to videotape the actions of police officers in public places and that seizure or destruction of such recordings violates constitutional rights.

The Justice Department made the statement in a federal lawsuit brought against the Baltimore Police Department by Christopher Sharp, who used his cellphone to take video of the police arresting and beating a friend at Pimlico on the day of the 2010 Preakness. The officers took Mr. Sharp’s cellphone while he was recording and wiped the phone clean of all videos before returning it to him.

The Courts of Appeals for the First and Seventh Circuits have wisely found that the Constitution protects the right to videotape police officers while they perform official duties. The video taken by another witness of the beating at Pimlico shows that the right to record is crucial to holding police accountable for their actions.

Business Insider: I Spy An Occupy: Obama’s DHS Surveils Legit Protesters:

Remember the Occupy Movement? Since last November, when the NYPD closed the Zuccotti Park encampment in downtown Manhattan-–the Movement’s birthplace and symbolic nexus—-Occupy’s relevance has seriously dwindled, at least as measured by coverage in the mainstream media. We’re told that this erosion is due to Occupy’s own shortcomings—-an inevitable outcome of its disjointed message and decentralized leadership.

While that may be the media’s take, the U.S. Government seems to have a different view.

If recent documents obtained by the Partnership for Civil Justice Fund (PCJF) are any indication, the Occupy Movement continues to be monitored and curtailed in a nationwide, federally-orchestrated campaign, spearheaded by the Department of Homeland Security (DHS).

. . .

The right to public assembly is a central component of the First Amendment. The Fourth Amendment is supposed to protect Americans from warrantless searches—with the definition of “search” expanded in 1967 to include electronic surveillance, following the Supreme Court’s ruling in Katz v. United States. Assuming the Occupy protesters refrain from violence—and the vast majority do, in accord with a stated tenet of the Occupy movement—the movement’s existence is constitutionally protected, or should be.

The DHS’s monitoring, documenting, and undermining of protesters may in fact violate the First Amendment. In a recent piece for Dissent Magazine, sociologist James B. Rule explains the fundamental importance of a movement like Occupy in the American political landscape.

Defendant had the burden of showing his reasonable expectation of privacy in heavily fire damaged premises, and he showed he retained a reasonable expectation of privacy in the basement office area suffering only water and smoke damage. The first floor was open to the world, but the basement was not and it was “perilous” to even attempt to get to it. United States v. Rahman, 2011 U.S. Dist. LEXIS 155131 (W.D. Wis. November 10, 2011):

The court concludes that when it comes to determining Rahman’s expectation of privacy, the circumstances present at the time of the search control. On the date of search, from the perspective of the investigators at the scene and Rahman himself, Rahman was the valid lease-holder of the property. Subsequent actions, even if characterized as retroactive so as to cover the time of the searches, cannot terminate a reasonable expectation of privacy any more than some after-the-fact paperwork could serve to retroactively create a reasonable expectation of privacy where none had existed.

Considering all the relevant factors, although the court considers it to be a very close call, the court concludes that the nature and the extent of the damage affecting the basement was not so extensive so as to eliminate any reasonable expectation of privacy in the basement. Entering the basement would have violated the city’s condemnation order but the court cannot easily dismiss the fact that “private effects … remain[ed] on the fire-damaged premises,” Tyler, 436 U.S. at 505, which in this case included items such as receipts, (Docket No. 31 at 128; see also Ex. D-6 (depicting toolset)). Therefore, it is the conclusion of this court that a person who exhibits an actual or subjective expectation of privacy in the basement of the destroyed restaurant would have an interest that society should recognize as reasonable.