An unauthorized driver of a rental car can still show standing if he can show permission from the renter. State v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011):

Our precedent in Nebraska supports the approach used in the Eighth [U.S. v. Best, 135 F.3d 1223 (8th Cir. 1998)] and Ninth [U.S. v. Thomas, 447 F.3d 1191, 1199 (9th Cir. 2006)] Circuits. We have stated that a defendant may demonstrate the infringement of his own legitimate expectation of privacy by showing that he owned the premises or that he occupied them and had dominion and control over them based on permission from the owner. State v. Stott, 243 Neb. 967, 503 N.W.2d 822 (1993), disapproved on other grounds, State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999). Thus, we have recognized standing of a guest as to certain areas of the home, State v. Lara, 258 Neb. 996, 607 N.W.2d 487 (2000); an “occupant” in a vehicle belonging to another, Stott, supra; and the driver of a vehicle of which he was not the owner where a nonowner passenger gave consent to search, State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996). Our cases show the importance of dominion and control and that standing is not limited to property rights or ownership.

[7] In accordance with the Eighth and Ninth Circuits, we hold that a driver of a rental vehicle may have standing to challenge a detention or search if he or she has demonstrated that he or she has received permission to drive the vehicle from the individual authorized on the rental agreement.

In this case, Nelson was not the authorized driver of the rental vehicle. However, he presented undisputed evidence that he had received permission from his uncle to use the vehicle, and the uncle was the authorized driver under the rental agreement. Accordingly, Nelson had standing to challenge his detention and the search of the rental vehicle on Fourth Amendment grounds.

In the YFZ Texas raid, a defendant convicted of sex with a minor had no standing to contest the questioning of minors during the raid on the 1,691 acre property and the structure by structure search. Emack v. State, 354 S.W.3d 828 (Tex. App.—Austin August 26, 2011):

As the court of criminal appeals noted in Kothe, it is critical to identify the precise government conduct being objected to, because this often will be determinative of the standing issue. Id. at 60. In his points of error complaining of the DFPS interviews, appellant contends that the interviews, and the information they revealed, were the fruit of unlawful conduct by DFPS employees, to whom he argues the Fourth Amendment applies. See Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 401 (5th Cir. 2002). He contends that DFPS agents violated the Fourth Amendment, and also article I, section 9 and article 38.23, by making a false statement of material fact and using unlawfully obtained evidence in their petition for order in aid of investigation, and by thereafter exceeding the scope of their authority under the order. These contentions are not based on any assertion that appellant was unlawfully detained on April 3, and they do require a determination as to whether or not appellant was unlawfully detained in order to be resolved.

The order in aid of investigation directed the “parent or person responsible” for the care of Sarah Jessop Barlow and her infant daughter to “immediately allow an authorized representative of the Department of Family and Protective Services to enter … [the YFZ Ranch] to interview and examine the children ….” Appellant did not claim to be the parent or person responsible for the care of any of the children interviewed by the DFPS caseworkers. In his affidavit in support of standing, appellant affirmed that he was a resident of the YFZ Ranch and a member of the FLDS, that his personal residence was searched and his personal property was seized, and that FLDS premises were searched and church property was seized. Appellant’s challenges to the manner in which the DFPS obtained the order in aid of investigation and to the scope of the interviews conducted by its caseworkers under the order are not based on any allegation that the conduct complained of violated appellant’s asserted privacy interests or that the interviews were a fruit of a violation of those interests.

Plain feel of a digital scale during a patdown was reasonable under Dickerson. State v. Morton, 204 N.C. App. 578, 694 S.E.2d 432 (2010).

Looking in on a stopped pickup truck in a parking lot at 2 a.m. with a driver slumped over the wheel was reasonable under the community caretaking function. The driver was DUI. City of Mandan v. Gerhardt, 2010 ND 112, 783 N.W.2d 818 (2010).* For the learning impaired courts:

[*P7] A person alleging a violation of Fourth Amendment rights has the initial burden of establishing a prima facie case of illegal seizure. City of Jamestown v. Jerome, 2002 ND 34, P 6, 639 N.W.2d 478 (citing City of Fargo v. Sivertson, 1997 ND 204, P 6, 571 N.W.2d 137). “After the person alleging a Fourth Amendment violation has made a prima facie case, the burden of persuasion is shifted to the State to justify its actions.” Id.

Officers had reasonable suspicion that there was a gun in the car before it was stopped, and that justified an “exit order” from the car. As the officer approached, there were furtive gestures to make him worry that more might happen. Commonwealth v. Charles, 81 Mass. App. Ct. 901, 959 N.E.2d 994 (2012)*:

The arresting officer’s exit order and subsequent patfrisk of the defendant were permissible because the officer had an objectively reasonable belief that his safety, and the safety of other officers, was in danger. See Commonwealth v. Gonsalves, 429 Mass. 658, 662-663, 665 (1999); Commonwealth v. Torres, 433 Mass. 669, 673-674 (2001); Commonwealth v. Stampley, 437 Mass. 323, 326 (2002); Commonwealth v. Bostock, 450 Mass. 616, 619-621 (2008). When the officer, whose testimony the motion judge credited, approached the car in which the defendant was a passenger, the officer had credible information that there might be a firearm in the car. As the weapon had not been recovered and the possibility of its presence had not been eliminated, the officer had a reasonable fear that it might be within the defendant’s reach.

Before the officer actually reached the defendant’s side of the vehicle, he saw that the defendant’s passenger door was open between six and twelve inches and, as a result, feared that the defendant would either flee or attack. Bostock, 450 Mass. at 622-623. Moreover, as the officer approached, the defendant made furtive gestures towards his waistband and continued those gestures when he was outside the vehicle. In addition, the defendant did not heed the officer’s order to keep his hands out of his waistband. Indeed, when the defendant exited the automobile, he grabbed toward his pants and appeared to be guarding something in them. The defendant’s nervous and excited manner during the encounter, his furtive gestures, and the officer’s credible information about the firearm gave him reasonable suspicion that the defendant was armed and dangerous. Viewed objectively, therefore, the facts and circumstances gave rise to “a heightened awareness of danger,” which justified the officer’s exit order and ensuing patfrisk. Stampley, 437 Mass. at 326, quoting from Gonsalves, 429 Mass. at 665.

Officers pulled up behind a car parked in a residential district to check on the welfare of its occupants. There was no suspicion of criminality. When one didn’t get out of the car fast enough to please the officer he was pulled out. That is inconsistent with a stop and frisk, and the motion to suppress was properly granted. State v. Forrest, 2011 Ohio 6234, 2011 Ohio App. LEXIS 5109 (10th Dist. December 6, 2011).*

A warrant was used to place a GPS on defendant’s vehicle, but he had no reasonable expectation of privacy in movements on a public road, so there was no basis to suppress. State v. Winningham, 2011 Ohio 6229, 2011 Ohio App. LEXIS 5115 (1st Dist. December 7, 2011).* [This is a pointless exercise because Johnson is pending in the Ohio Supreme Court, argued about two months ago, and Jones was argued in SCOTUS on November 8th.]

Following Davis, when a search was valid under Belton, the good faith exception validates the search despite Gant. State v. Johnson, 354 S.W.3d 627 (Mo. 2011).*

Defense counsel was not ineffective for not forecasting Gant under which defendant might well have prevailed. Hoskins v. State, 149 Idaho 815, 242 P.3d 185 (App. 2010)*:

It appears that if the standards announced in Gant were applied, a suppression motion might have merit in Hoskins’ case. That does not mean, however, that Hoskins has shown that he received ineffective assistance of counsel. The Sixth Amendment entitles criminal defendants to reasonably competent counsel, but not perfect or prescient counsel. … [¶] Despite his protests to the contrary, Hoskins is asking this Court to hold his defense counsel deficient for failing to anticipate future developments in the law. The constitutional standard for effective assistance of counsel does not demand such prescience. Accordingly, we agree with the district court’s assessment that Hoskins’ claim for ineffective assistance of counsel is without merit.

Officer reasonably believed the defendant was driving on a “public road” not a private street when he stopped defendant, so the stop was valid. State v. Hopper, 205 N.C. App. 175, 695 S.E.2d 801 (2010).*

Defendant was not on the rental agreement as an authorized driver of the rental car, so he lacked standing (declining to follow an unpublished decision from the same circuit). United States v. Sutmiller, 2011 U.S. Dist. LEXIS 72657 (W.D. Okla. July 6, 2011).*

Defendant’s wife consented, and he was present and never objected. United States v. Mooney, 2011 U.S. Dist. LEXIS 72388 (N.D. Fla. July 6, 2011).*

Face-to-face encounter with a woman who reported defendant with a gun was reliable enough information for a patdown. D.P. v. State, 65 So. 3d 123 (Fla. App. 3d DCA 2011), Rehearing denied, 2011 Fla. App. LEXIS 11795 (Fla. Dist. Ct. App. 3d Dist., July 21, 2011).*

Defendant was validly stopped for a violation of curfew. Given that, the request for consent was valid. People v. Leach, 355 Ill. Dec. 266, 959 N.E.2d 680 (2011), Appeal denied by People v. Leach, 2011 Ill. LEXIS 1877 (Ill., Nov. 30, 2011).*

NPR: Court: Unscrambling Hard Drive Is Unconstitutional by Carrie Johnson:

A federal appeals court has ruled for the first time that a suspect in a child porn case does not need to unlock his thoroughly-scrambled computer hard drives because it would violate his Fifth Amendment rights. That ruling conflicts with two other cases, including one this week where a Denver-based appeals court says a Romanian immigrant needs to turn over an unencrypted version of her laptop hard drive to help authorities pursue a mortgage fraud case

.

NECN.com: Fla. panel OKs state worker drug-testing bill:

TALLAHASSEE, Fla. (AP) — After a roller-coaster ride through the House, a bill that allows state agencies to randomly drug-test their employees was cleared by a final committee on Friday.

The House State Affairs Committee cleared the bill (HB 1205) by a party-line vote of 9-6.

The measure allows, but does not require, state agencies to randomly test workers every three months. It makes it easier to fire those workers who show positive for drugs after a first test that has been confirmed.

An earlier committee had rejected the measure after Republicans and Democrats questioned its cost and legality. Rep. Jimmie Smith, the Inverness Republican sponsoring the bill, changed it so that no extra money for drug tests is needed. Tests will be paid for out of the agencies’ existing budgets.

Under this latest version of the revived bill, a random sample of employees to be tested can’t be more than 10 percent of the agency’s workforce and must be generated by an “independent third-party” computer.

WSJ Blog: Court: Fifth Amendment Protects Suspects from Having to Decrypt Hard Drives by Joe Palazzolo:

In a ruling that could have broad ramifications for law enforcement, a federal appeals court has ruled that a man under investigation for child pornography isn’t required to unlock his computer hard drives for the federal government, because that act would amount to the man offering testimony against himself.

The case is In Re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011, No. 11-12268 & 11-15421 (11th Cir. February 23, 2012). The owner of the hard drive was held in civil contempt and imprisoned for refusing to give the information under the limited immunity order he got from the court:

For the reasons that follow, we hold that Doe’s decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the Government’s use of the drives’ contents. The district court therefore erred in two respects. First, it erred in concluding that Doe’s act of decryption and production would not constitute testimony. Second, in granting Doe immunity, it erred in limiting his immunity, under 18 U.S.C. §§ 6002 and 6003, to the Government’s use of his act of decryption and production, but allowing the Government derivative use of the evidence such act disclosed.

. . .

Whether the drives’ contents are testimonial, however, is not the issue. What is at issue is whether the act of production may have some testimonial quality sufficient to trigger Fifth Amendment protection when the production explicitly or implicitly conveys some statement of fact. See Fisher v. United States, 425 U.S. 391, 410, 96 S. Ct. 1569, 1581, 48 L. Ed. 2d 39 (1976) (“The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced.”). Thus, we focus on whether Doe’s act of decryption and production would have been testimonial.

AP: VA governor dropped bill over legal concerns by Beth Fouhy:

WASHINGTON (AP) — Virginia Gov. Bob McDonnell said Friday he backed away from a bill requiring women to undergo an invasive procedure before receiving an abortion because he believed it might not have withstood legal scrutiny.

McDonnell, chairman of the Republican Governors Association, addressed the matter at a panel hosted by Politico. It was his first extensive comments since asking lawmakers this week to drop a bill that would have required women seeking abortions to submit to a vaginal ultrasound procedure. The bill drew sharp opposition from Democrats and women’s groups and was lampooned on national late night comedy shows.

“I got legal advice from various people, including my attorney general, that these kinds of mandatory invasive requirements might run afoul of Fourth Amendment law,” McDonnell said. The Fourth Amendment to the Constitution guards against unreasonable search and seizure.

Duh!

Wired.com: Threat Level: DOJ Urges Supreme Court to Halt Challenge to Warrantless Eavesdropping by David Kravets:

The Obama administration is urging the Supreme Court to halt a legal challenge weighing the constitutionality of a once-secret warrantless surveillance program targeting Americans’ communications that Congress eventually legalized in 2008.

The FISA Amendments Act (.pdf), the subject of the lawsuit brought by the American Civil Liberties Union and others, allows the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is outside the United States. The communications may be intercepted “to acquire foreign intelligence information.”

The administration is asking the Supreme Court to review an appellate decision that said the nearly 4-year-old lawsuit could move forward. The government said the ACLU and a host of other groups don’t have the legal standing to bring the case because they have no evidence they or their overseas clients are being targeted.

Today is the 251st anniversary of James Otis’ argument at the Boston Old State House against the writs of assistance in Paxton’s Case, heard Tuesday, February 24, 1761. (See this prior post from 2006).

Last year’s post here.

Based on the average number of postings over the last nine years, this website passed 10,000 postings, probably 5-7 months ago.

Defendant consented to a search of his trunk, even showing the officers the trunk key. His statement “they’re tearing up my trunk” was not a withdrawal of consent. State v. Schiro, 2012 N.C. App. LEXIS 245 (February 21, 2012)*:

In the case at hand, officers testified to receiving consent from defendant to search his vehicle. Defendant even showed officers which key opened the trunk of his car. Defendant, alternatively, contends he revoked his consent while sitting, arrested, in a nearby patrol car when he “said several times, ‘They’re — man, they’re tearing up my trunk.’” Defendant correctly notes that a person may withdraw his or her consent to a search. State v. Hagin, 203 N.C. App. 561, 564, 691 S.E.2d 429, 433, disc. review denied, 364 N.C. 438, 702 S.E.2d 500 (2010). “The scope of a valid consent search is measured against a standard of objective reasonableness where the court asks ‘what would the typical reasonable person have understood by the exchange between the officer and the suspect?’” Id. at 564, 691 S.E.2d at 432 (quoting Florida v. Jimeno, 500 U.S. 248, 251, 114 L. Ed. 2d 297, 302 (1991)). A reasonable person would not have considered defendant’s statements that the officers were “tearing up” his car to be an unequivocal revocation of his consent. Similarly, in State v. Morocco, 99 N.C. App. 421, 430, 393 S.E.2d 545, 550 (1990), our Court held that the trial court did not err in determining that the defendant did not revoke his consent to search his vehicle when he made the ambiguous statement that a tote bag found in his car had nude photographs of his wife. Had defendant, in the case at bar, desired to revoke his consent he should have made it in a clearer statement that a reasonable person would have considered to be a revocation.

SSRN: Slobogin on Three Recent Fourth Amendment Articles:

Christopher Slobogin (Vanderbilt Law School) has posted Comments on Three Recent Fourth Amendment Articles on SSRN. Here is the abstract:

This document combines short comments about three recent articles discussing Fourth Amendment issues. An Original Take on Originalism, published in Harvard Law Review Forum, is a comment on Orin Kerr’s An Equilibrium-Adjustment Theory of the Fourth Amendment, recently published in Harvard Law Review. Professor Kerr argues that Fourth Amendment law ought to be structured to ensure that the balance of power between government and citizenry remains constant. Contrary to Professor Kerr’s assertion, however, his equilibrium-adjustment theory does not easily explain many of the Court’s cases, nor does it help address the most difficult Fourth Amendment issues facing the Court today. The historical foundations on which it rests are often shaky or insufficiently cognizant of modern preferences. At bottom, equilibrium-adjustment theory is originalism, and thus suffers from all of the problems associated with that methodology.

NJToday.net: There Is Nothing Constitutional About State-Mandated Transvaginal Ultrasounds by John W. Whitehead:

“Women might consider this bill a TSA pat-down inside their vagina.” – Jon Stewart, The Daily Show

Contraception and abortion are shaping up to be mobilizing issues in this year’s presidential election. From disputes over whether the federal health care mandate should cover contraception and abortion to state-led efforts to undermine abortion by, among other things, requiring that women seeking to have abortions be subjected to invasive transvaginal ultrasounds without their consent, these highly partisan issues keep us divided and distracted, and incapable of doing anything to prevent the steady erosion of our rights by the powers that be.

The latest political kerfuffle to make national headlines comes out of Virginia, where women’s rights advocates are mobilizing over legislation requiring that doctors act as agents of the state and subject women seeking abortions to ultrasound procedures, which in many cases would mean an invasive transvaginal probe, without their consent. This legislation encapsulates exactly how disrespectful of life and freedom the dialogue on abortion has become.

. . .

The issue, however, is not even whether or not a transvaginal ultrasound is widely used or is medically necessary in order for a doctor to carry out an early-stage abortion. The point is that requiring doctors to carry out such invasive probes on a woman without her consent, thereby intruding upon the physician-patient relationship and reducing doctors to agents of the state, violates the Fourth Amendment’s prohibition against searches by government agents. Frankly, no medical actor, doctor or otherwise, should be coerced by the state into probing a woman’s body. By mandating that doctors carry out such invasive probes on a woman without her consent, the bill’s sponsors trade one misdeed (abortion) for another (violating a woman’s Fourth Amendment right to be free from searches by government agents).

Besides being an unreasonable search, it would be rape under most state laws by forced penetration by a foreign object against a woman’s will. State sanctioned rape by foreign object?

For many in the GOP, there is more of a constitutional right to the light bulb of your choice than in bodily integrity or bedroom privacy. How twisted is that?

In a trash pull, the court finds that the trash can was partially on a common sidewalk away from the back door of defendant’s house on a “common easement,” therefore outside the curtilage. United States v. Jackson, 2012 U.S. Dist. LEXIS 20517 (E.D. Va. February 17, 2012).*

Defendant did not show a reasonable expectation of privacy in a vehicle where he did not even know the owner of it and there was no pattern of possession of the vehicle indicative of control granted by the owner. United States v. Guevara, 2012 U.S. Dist. LEXIS 20910 (D. Neb. February 21, 2012).*

Defendant was an accused member of a drug trafficking organization (DTO) that operated for a long time. Reliance on a telephone call that was four months old was not stale given the ongoing nature of the DTO. United States v. Loaiza-Clavijo, 2011 U.S. Dist. LEXIS 153347 (N.D. Ga. October 13, 2011).*

NYTimes.com: Drones May Set Off a Flurry of Lawsuits by Somini Sengupta:

Opening up the skies to the civilian use of drones in the United States is likely to lead to a number of new questions about surveillance by electronic means.

Unmanned aerial vehicles can not only take photos and videos, they can also spot heat sources, read car license plate numbers, and perhaps soon capture other information about people and things down below.

From one person who wants to pick your Supreme Court members, from 2003: Santorum: Privacy ruined everything:

All the rights in the Constitution, which are individually based rights, according to our founders were not there for the individual’s gain, but the reason we established those rights was for the common good. The right to privacy is not the right to a common good.

From The Maddow Blog. Sounds almost Communistic to me. I thought Ayn Rand was a Tea Party darling? This isn’t what she believed.

EmptyWheel.com: Will SCOTUS Invent a “Database-and-Mining” Exception to the Fourth Amendment?

As I noted yesterday, the Administration appealed the 2nd Circuit Decision granting review of the FISA Amendments Act to the Supreme Court last week. I wanted to talk about their argument in more detail here.

Over at Lawfare, Steve Vladeck noted that this case would likely decide whether and what the “foreign intelligence surveillance” exception to the Fourth Amendment, akin to “special needs” exceptions like border searches and drug testing.