NetworkWorld: You consent to a search if a camera sees you? Facial Recognition vs 4th Amendment:

When you go outside or go to other public places such as a bank or a mall, have you automatically given up your Fourth Amendment rights and consented to a search? When it comes to tracking you via facial recognition technology, what if the government or other law enforcement were to use that argument, that by simply being in a place where there are security cameras, you waived your Fourth Amendment rights and consented to a search?

The FBI and DOD sponsored a legal series about the U.S. government using facial recognition; the latest forum was titled “Striking the Balance – A Government Approach to Facial Recognition Privacy and Civil Liberties.” Whenever the word ‘balance’ is used, privacy and civil liberties are usually about to be kicked in the name of ‘security.’ When it comes to surveillance via facial recognition technology, federal law enforcement, intelligence personnel and national security agencies are looking into the “gaps in legal/policy authority that may result in privacy and civil liberties vulnerabilities if left unaddressed.”

The Future of Privacy Forum (FPF) Senior Fellow Peter Swire, also a law professor at Ohio State University, spoke about “Facial Recognition by the Government: Privacy and Civil Liberties Issues.” Since using “one’s facial image, with or without knowledge or consent,” can identify and be used to track a person “an inherent tension exists between privacy and facial recognition.” The forum was to “examine where the appropriate balance lies between crime and terrorism prevention using facial recognition and robust privacy safeguards.” Swire started with two different perspectives about facial recognition, according to FPF.

Dog sniff outside the defendant’s house in a multi-family unit was reasonable under Place and Caballes, and Jardines is rejected. United States v. Anthony, 2012 U.S. Dist. LEXIS 38123 (D. N.J. March 20, 2012):

This is the type of distinction the Florida Supreme Court found in Jardines v. State, 73 So.3d 34 (Fla. 2011). The Court reasoned that even though the revelation of possession of contraband could not invade a privacy interest, the canine sniff outside a home “will invariably entail a degree of public opprobrium, humiliation and embarrassment for the resident, for such dramatic government activity in the eyes of many-neighbors, passers-by, and the public at large-will be viewed as an official accusation of crime.” Id. at 36. The Court added that if police can conduct suspicionless sniff tests, there was nothing to prevent discriminatory or irrational use of the procedure. Id.

However, neither reason for distinguishing Caballes is persuasive as applied to the present facts. First, the Florida Court’s conclusion that sniffs “will invariably entail a degree of public opprobrium, humiliation and embarrassment for the resident” is less applicable to the facts of this case, in which the sniff occurred away from the plain view of the general public inside a common area of a multi-family residence with the permission of the owner. Nothing in the record suggests anyone but the landlord was privy to the presence of police activity, much less aware of the particular apartment being sniffed. Similarly, this Court is not asked to determine whether police presence with a dog on the curtilage of a home without permission involves some intrusion into privacy not present in Caballes or Place. Instead, this situation involves police presence in a common area with express permission to be there.

Officers’ determination that they could hold defendant for 48 hours on an illegal arrest was the cause of defendant’s statement, and it should have been suppressed. State v. Bishop, 2012 Tenn. Crim. App. LEXIS 171 (March 14, 2012).*

Talking to defendant sitting in a parked car was a “consensual encounter” under Ohio case law, and the officer’s plain view of two roaches in the ashtray was valid. State v. Calhoun, 2012 Ohio 1128, 2012 Ohio App. LEXIS 994 (11th Dist. March 19, 2012).*

Defendant’s 2255 was couched in terms of a Fourth Amendment violation and not a Sixth Amendment violation, so it should have been raised in the direct appeal. Ford v. United States, 2012 U.S. Dist. LEXIS 38296 (E.D. Mo. March 21, 2012).*

Indiana Law Blog: Ind. Law — Gov. signs SEA 1, the right to defend against unlawful entry

A news release just received:

Tuesday evening, Governor Daniels signed SEA 1, titled “Right to defend against unlawful entry.” He issued the following statement about his decision to sign the bill:

“After close inspection, I have decided to sign Senate Enrolled Act 1. Contrary to some impressions, the bill strengthens the protection of Indiana law enforcement officers by narrowing the situations in which someone would be justified in using force against them. Senate Enrolled Act 1 puts into place a two-part test before a person can use deadly force against a law enforcement officer: First, it clarifies and restates the current requirement that a person reasonably believe the law enforcement officer is acting unlawfully. Second, it adds that the force must be reasonably necessary to prevent serious bodily injury to the citizen. This second requirement is not part of the current law.

“Moreover, unless a person is convinced an officer is acting unlawfully, he cannot use any force of any kind. In the real world, there will almost never be a situation in which these extremely narrow conditions are met. …”

The Act is to counter the Indiana Supreme Court’s Barnes case, posted here.

Update: IndyStar.com: Indiana’s new “right to resist” law worries police:

Gov. Mitch Daniels is warning Hoosiers that a new Indiana law meant to protect citizens from an illegal intrusion by police is no green light to resist law enforcement.

Police, though, fear it will lead to just that.

NPR: FBI Still Struggling With Supreme Court’s GPS Ruling by Carrie Johnson:

Earlier this year, the Supreme Court said police had overstepped their legal authority by planting a GPS tracker on the car of a suspected drug dealer without getting a search warrant. It seemed like another instance in a long line of cases that test the balance between personal privacy and the needs of law enforcement.

But the decision in U.S. v. Jones set off alarm bells inside the FBI, where officials are trying to figure out whether they need to change the way they do business.

Before the Supreme Court ruling in late January, the FBI had about 3,000 GPS tracking devices in the field.

See also BLT: Prosecutors Gear Up For GPS Drug Case, Sans Tracking Data:

With the U.S. Supreme Court’s landmark warrantless surveillance case back in Washington federal district court, prosecutors said they are gearing up for a legal fight over the availability of certain pieces of evidence.

The high court in January ruled for a Washington nightclub owner named Antoine Jones. Prosecutors have accused him of running a cocaine trafficking ring in the Washington metropolitan area.

BLT: D.C. Judge Weighs Constitutional Challenge to ‘Post and Forfeit’ by Zoe Tillman:

U.S. District Judge Amy Berman Jackson heard arguments today about whether a legal challenge to a controversial post-arrest procedure in the District of Columbia known as “post and forfeit” should survive a motion to dismiss.

Under “post and forfeit,” a person arrested for certain low-level offenses in D.C. can post collateral and then agree to forfeit it in exchange for having the case essentially dropped. The Metropolitan Police Department has come under scrutiny in the past amid concerns that officers used “post and forfeit” to quickly close and cover up wrongful arrests.

Defendants lived at the place searched, and the fact that it was also used to distribute drugs did not deny them standing under Carter. United States v. Vazquez-Velazquez, 2012 U.S. Dist. LEXIS 35867 (N.D. Ga. February 23, 2012):

Notwithstanding the Government’s evidence that the house at 1986 Benthill Drive was used for some drug activity, the evidence does not establish that the house was used primarily for drug operations. Based on the evidence discussed above, I conclude that Defendants met their burden of showing that they lived in the house and used it for ordinary activities of daily living, and thus, had a legitimate expectation of privacy in the house.

A traffic stop based on a reasonable belief that a traffic violation occurred is proper. United States v. Rodriguez-Trevino, 2012 U.S. Dist. LEXIS 36561 (N.D. Ga. February 21, 2012)*:

“the propriety of the traffic stop does not depend on whether the defendant is actually guilty of committing a traffic offense,” but instead, “the pertinent question is whether it was reasonable for the officer to believe that a traffic offense had been committed.” United States v. Crump, Criminal Action File No. 4:10-CR-032-HLM-WEJ, 2011 WL 6153106, at *5 (N.D. Ga. Nov. 21, 2011) (citation omitted), adopted by 2011 WL 6179211, at *8 (N.D. Ga. Dec. 12, 2011).

Florida Independent: Scott signs latest random drug testing of state employees bill by Ashley Lopez:

Last night, Gov. Rick Scott signed into law the state’s second attempt to randomly drug test state employees.

A bill passed through both chambers of the Legislature this month that would allow state agencies to adopt policies for randomly drug testing all of their employees. Civil rights and labor groups spoke out against the bill, which was lobbied for by the governor’s office, as it made its way through the Legislature.

A laptop seized at the border could be moved 170 miles away for a search under the Fourth Amendment. United States v. Cotterman, 637 F.3d 1068 (9th Cir. 2011), vacated on grant of rehearing en banc (March 20, 2012):

Today we examine a question of first impression in the Ninth Circuit: whether the search of a laptop computer that begins at the border and ends two days later in a Government forensic computer laboratory almost 170 miles away can still fall within the border search doctrine. The district court considered the issue to be a simple matter of time and space. It concluded that the search of property seized at an international border and moved 170 miles from that border for further search cannot be justified by the border search doctrine. We disagree.

We find no basis under the law to distinguish the border search power merely because logic and practicality may require some property presented for entry—and not yet admitted or released from the sovereign’s control—to be transported to a secondary site for adequate inspection. The border search doctrine is not so rigid as to require the United States to equip every entry point—no matter how desolate or infrequently traveled—with inspectors and sophisticated forensic equipment capable of searching whatever property an individual may wish to bring within our borders or be otherwise precluded from exercising its right to protect our nation absent some heightened suspicion.

Still, the line we draw stops far short of “anything goes” at the border. The Government cannot simply seize property under its border search power and hold it for weeks, months, or years on a whim. Rather, we continue to scrutinize searches and seizures effectuated under the longstanding border search power on a case-by-case basis to determine whether the manner of the search and seizure was so egregious as to render it unreasonable.

The Ninth Circuit granted rehearing en banc in United States v. Cotterman, 637 F.3d 1068 (9th Cir. 2011), posted here.

Today we examine a question of first impression in the Ninth Circuit: whether the search of a laptop computer that begins at the border and ends two days later in a Government forensic computer laboratory almost 170 miles away can still fall within the border search doctrine. The district court considered the issue to be a simple matter of time and space. It concluded that the search of property seized at an international border and moved 170 miles from that border for further search cannot be justified by the border search doctrine. We disagree.

ACLU.org: Even After Supreme Court GPS Decision, Feds Still Want Warrantless Cell Phone Tracking by Sarah Roberts, Speech, Privacy and Technology Project:

Even after January’s landmark Supreme Court decision cast significant doubt on the government’s ability to electronically track a person’s location without a warrant, the Justice Department continues to defend this practice. On Friday, the ACLU, along with the Electronic Frontier Foundation, the Center for Democracy and Technology, and the National Association of Criminal Defense Lawyers, filed a friend-of-the-court brief in the U.S. Court of Appeals for the Fifth Circuit, arguing that the government should be required to obtain a warrant based on probable cause before seizing 60 days’ worth of location information generated by an individual’s cell phone.

Volokh Conspiracy: What Are the Damages for a Fourth Amendment Search? by Orin Kerr:

Imagine the police search a home for evidence of crime. No one is home but the door is unlocked, and the officers look in the kitchen, bedroom, and closets. They find nothing, and then they leave. Assume that the police do not damage any property or make a mess of things inside the home.

. . .

Now imagine the homeowner learns of the search. The homeowner believes correctly that the search violated the Fourth Amendment, and he sues the officers for money damages. Imagine five possibilities for why the search violated the Fourth Amendment: …

Here’s my question. Assume that there is no qualified immunity, and that the officers are liable for whatever damages the homeowner suffered for the search. If you are a juror and you are tasked with estimating the damages, what do you think the damages are for these five scenarios?

With this Supreme Court, not much. Maybe no qualified immunity, but how do you calculate the damages?

Arrival of the police at defendant’s house led to likely destruction of evidence, and that was exigency for an entry by the police. United States v. Boney, 2012 U.S. Dist. LEXIS 30947 (D. Del. March 8, 2012)*:

31. Having found probable cause, the issue becomes whether the record establishes that exigent circumstances were present to support the warrantless, forcible entry into the residence. In finding that exigent circumstances warranted the entry of the residence, the court recognizes that the events unfolded very rapidly, increasing an already precarious undercover investigation. This fluid chain of events began when Hughes surmised that Gonzalez had discovered the police presence and was warning the people inside the house, ostensibly, to destroy evidence and/or arm themselves. The decision to arrest Gonzalez further heightened the danger through the noise and attention drawn to the area. In fact, defendant averred that the sounds of screeching tires drew him to the window to open the curtains and that he saw people running toward the residence. During those split seconds that the curtains were open, Collins, at very close proximity, observed an individual place something in the couch before the curtains were quickly closed. Defendant’s own affidavit corroborates the observation. Further, while standing in front of the residence, Hughes heard loud noises and movement coming from inside. With officers stationed in vulnerable positions, Hughes made the decision to forcibly enter the residence to protect themselves and prevent the destruction of evidence.

32. The record does not support defendant’s contention that officers created the exigency. Rather, the quickly unfolding events satisfactorily demonstrate that officers acted reasonably. There was nothing of record to suggest that officers’ conduct caused or manipulated the events to create the need to forcibly enter the residence.

Then what is a police created exigency? The police just show up, and exigency is a self-fulfilling prophecy in Delaware?

A parent who does not know the child’s computer password doesn’t have apparent authority to consent to a search of the computer; rejecting United States v. Andrus, 483 F.3d 711 (10th Cir. 2007), as illogical and unwarranted. United States v. Griswold, 2011 U.S. Dist. LEXIS 153943 (W.D. N.Y. June 2, 2011) (just now on Lexis):

The government does not argue that the Second Circuit has yet adopted the Andrus holding on apparent authority as to password protected computers and the reasoning behind the Andrus decision has been questioned by both a leading Fourth Amendment scholar and several law review student commentators. See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.3(g) at 180 (4th ed. 2004, 2010-11 Supplement) (“Remarkably, the majority in Andrus, on these facts, upheld the search on an apparent authority basis.”); David D. Thomas, Note, Dangerously Sidestepping the Fourth Amendment: How Courts Are Allowing Third-Party Consent To Bypass Warrants for Searching Password-Protected Computers, 57 Clev. St. L. Rev. 279, 304-05 (2009) (It is constitutionally wrong to “allow police officers to skate around the Fourth Amendment by intentionally avoiding asking questions of third parties while obtaining consent, as well as allowing them to ignore password “locks” on computers that, as shown, courts have held to be analogous to locks on physical items.”); Michael J. Ticcioni, Comment, United States v. Andrus: Does the Apparent Authority Doctrine Allow Circumvention of Fourth Amendment Protection in the Warrantless Search of a Password-Protected Computer, 43 New Eng. L. Rev. 339, 355 (Winter 2009) (“The Tenth Circuit erred in its holding that law enforcement agents were reasonable in relying on the apparent authority of a ninety-one year old man to consent to a search of his son’s password-protected computer.”); Michael Smith, Survey, The Fourth Amendment, Password-Protected Computer Files and Third Party Consent Searches: The Tenth Circuit Broadens the Scope of Warrantless Searches, 85 Denv. U. L. Rev 701, 723 (2008) (“The Andrus rule essentially does three things: first, it removes the requirement for a third party consenter to have a key to a locked container; second, it replaces the key requirement with a government actor’s reasonable belief that there is no need for a key; and third, it allows the use of technology to bypass a key (or password) without first determining whether the container (or computer) is locked.”); Noah Stacy, Comments and Casenotes, Apparent Third Party Authority and Computers: Ignorance of the Lock is No Excuse, 76 U. Cin. L. Rev. 1431 (Summer 2008) (“The court’s holding sets a dangerous precedent under which law enforcement may evade the Fourth Amendment requirement of either a warrant or valid consent by claiming ignorance of any password protection and relying upon the apparent authority of a third party.”); Sarah M. Knight, Casenote, United States v. Andrus: Password Protect Your Roommate, Not Your Computer, 26 J. Marshall J. Computer & Info. L. 183, 184 (Fall 2008) (“As a consequence of this holding, third-parties can consent to searches beyond their authority, and individuals’ efforts to secure their data are rendered useless.”); John-Robert Skrabanek, Note, Apparent Authority in Computer Searches: Sidestepping the Fourth Amendment, 97 Ky. L.J. 721, 728-29 (2008-09) (“By allowing such searches, these courts have created the incentive for law enforcement not to ask questions.”). In addition, in responding to a petition for rehearing, the Tenth Circuit panel in Andrus issued a decision limiting its holding to the “narrow question” presented by the facts and was not controlling authority on facts not presented such as a situation where “law enforcement confronts password protection or user profiles on home computers.” United States v. Andrus, 499 F.3d 1162 (10th Cir. 2007) (rehearing denied).

But aside from doubts as to its constitutional logic, the facts in Andrus are distinguishable in an important way from the search of Griswold’s laptop. In Andrus the court specifically relied on the fact that when the officers began opening files on the computer they were not aware (and did not inquire about) whether the computer was locked or password protected. “Even if [the defendant’s] computer was protected with a user name and password, there is no indication in the record that the officers knew or had reason to believe such protections were in place.” 483 F.3d at 721. Here, however, the proof is the opposite. Investigator Becker testified that before commencing the search he noted that “[t]he laptop was on and it showed a screen and it said Bryan on the screen and it said locked.” (Tr. at p. 67) (emphasis added). Instead of inquiring further about the fact that the computer was locked, Becker testified he then shut down the computer, inserted his special forensic software disk, booted up the computer, and then was able to “browse the hard drive without a password.” (Tr. at p. 67). The need for a password to enter an otherwise locked computer, known to Investigator Becker prior to opening any files and commencing his search, clearly indicated that Griswold had taken steps to protect his privacy and exclude others from looking at files on his laptop computer. At that point, without more information, it was unreasonable for the Investigators to assume that Mrs. Williamee had actual authority to consent to the search of her son’s laptop.

In sum, based on the totality of circumstances present here, I find that the government has failed to meet its burden of demonstrating that it was objectively reasonable for the Investigators to believe that Mrs. Williamee had the authority to consent to a search of a password protected laptop computer belonging to her eighteen year old son and retrieved from her son’s bedroom.

By not securing the occupants of a rental car that was subject to impoundment for lack of an authorized driver, the need for a search incident was akin to the situation in Belton rather than Gant. United States v. Harmon, 2011 U.S. Dist. LEXIS 153996 (M.D. Fla. November 4, 2011).* [So, the officer can simply not secure the persons arrested and use that as an excuse for search incident? Better yet, the car was subject to impoundment for lack of a licensed driver. Period. This was deciding something that didn’t need to be decided. Don’t count on this case being good law.]

Defendant’s suppression motion was denied in 1998 and he appealed. He since had post-conviction hearings. “His repetitive frivolous motions and appeals will not change this court’s ruling on the issue. It was determined more than a decade ago that the January 2, 1998, search of Claude Bellamy’s house was by consent.” Bellamy v. United States, 2012 U.S. Dist. LEXIS 32458 (E.D. N.C. March 12, 2012).

Defendant was arrested in Belize for immigration violations and child pornography was found. He makes no showing whatsoever that American authorities had anything to do with it. United States v. McVicker, 2012 U.S. Dist. LEXIS 33164 (D. Ore. March 13, 2012).*

NYPost.com: Law office of accused madam’s upstate neighbor raided by cops by Jeane MacIntosh, Laura Italiano and Antonio Antenucci:

The probe of accused madam Anna Gristina widened today as cops descended on the downtown offices of a criminal defense lawyer who is her upstate neighbor — and the registered agent for Gristina’s pig rescue farm house.

The lawyer, David Jaroslawicz, confirmed this afternoon that several cops were in his office at 225 Broadway, going through files.

Asked what they were looking for, he said, “I have no idea.”

Prosecutors have claimed that Gristina had a “lawyer friend” who helped her invest and launder her money.

Law office searches are scary for both the target and the police because they’re so easy to screw up. If you’re a law enforcement officer reading this, get a special master involved ASAP, preferably before the search or at least before records are reviewed. In this case, the key is the fourth paragraph referring to money laundering. Lawyers are not immune from searches for money laundering. Clients, however, have a reasonable expectation of privacy in their lawyer’s files and they have every right to challenge the PC and the execution.

O’Reilly Factor: Drug testing for unemployment benefits? Transcript:

O’REILLY: “Kelly File” segment tonight. Two very hot topics, a call for the U.N. to investigate U.S. voting laws. What?

But first, the Arizona Senate approves a measure requiring a drug test for anyone applying for unemployment benefits in that state. Here now, attorney and Fox News anchor, Megyn Kelly. All right so tell me about Arizona. What do they want?

MEGYN KELLY, FOX NEWS ANCHOR: So they want to test unemployment recipients for drug use.

O’REILLY: Why?

KELLY: But they only want to test those whom they have a reasonable suspicion about, if they have reasonable cause to believe you might be on drugs. And if you got arrested…

New Haven Register: Bill would let Connecticut towns seek search warrants to inspect properties by Jordan Fenster:

A bill up for legislative review would grant municipalities the right to seek a search warrant if zoning officials believe there has been an ordinance violation.

The pending legislation, requested by state Rep. Susan Johnson, D-Windham, is the result of a state Supreme Court ruling that affirmed the right of citizens to, in the words of the court’s decision, “be free from unreasonable searches.”

In the case of the town of Bozrah v. Anne D. Chmurynski, town zoning official Thomas Weber had been asked to examine private property because, according to the court record, “he intended to inspect the property for ‘junk.’”

And the beat goes on:

GPB News: Welfare Drug Testing Bill Revised by Jeanne Bonner:

Georgia lawmakers are revising a bill that opponents say is almost certain to land in federal court. It would require welfare recipients to take a drug test before receiving benefits. Its sponsor says the measure would save taxpayers money but others say it’s unconstitutional.

Sen. John Albers, a Roswell Republican, is the bill’s sponsor. He modeled it on a Florida law, now blocked by a federal judge because it violates the Fourth Amendment’s protection from unlawful search.

When these clowns pass such bills, they just make money for the plaintiffs’ civil rights bar that files the case in attorneys fees. They are clueless.

Andrew Guthrie Ferguson, Virtual Curtilage: A Theory of Fourth Amendment Privacy in Public. SSRN Abstract:

This article proposes a new theory of Fourth Amendment privacy in public that builds off the legal construct of curtilage around private homes. Curtilage involves a publicly observable area defined as a protected space outside the home in which intimate activity associated with the sanctity of the home and the privacies of life are conducted. Arising from principles of property law and privacy conceptions that pre-date the Fourth Amendment, the idea is a well-grounded legal fiction that protects individuals beyond the four walls of the home.

This article takes the principle of curtilage applied to property, and applies it to the rest of the Fourth Amendment protections covering “persons,” “papers,” and “effects.” The “virtual curtilage” theory has been developed in response to growing surveillance techniques in public spaces, as well as difficulties in protecting thoughts and writings in the digital realm. The theory looks at the development of an historic legal concept that expanded privacy protections based on fundamental principles of property and privacy – a concept based not on what could be searched, but what should be searched consistent with societal rules. That limiting principle of protecting a zone outside the literal four walls of a home has renewed urgency as surveillance technologies increase on our streets and in our digital lives. In addition, building off the Supreme Court’s decision in United States v. Jones and other cases that have refocused interest on the property based-nature of the Fourth Amendment, the idea of curtilage remerges as a central organizing principle for redefining a reasonable expectation of privacy under the Fourth Amendment.