Detectives testified that they were responding to a police report of harassment at defendant’s residence when they viewed him through his front window engaging in drug trafficking. At the suppression hearing, the detectives each testified that they believed entry into defendant’s apartment was necessary to prevent the destruction of evidence. However, there was no indication that any marijuana or other evidence was being destroyed. In fact, defendant was alone in his apartment and was unaware that the detectives were even at his front door until they announced their presence. Thus, the detectives had ample opportunity to secure the premises and obtain a valid warrant without risking retrieval of the evidence at issue. However, because defendant opened the door and took a step back when the detectives asked to enter his apartment, he consented to their entry. Once inside the apartment, the marijuana was in plain view, justifying defendant’s arrest. State v. Booker, 2012 Ohio 162, 2012 Ohio App. LEXIS 126 (8th Dist. January 19, 2012).*

Defendant called police because of a domestic disturbance between him and his live-in girlfriend. The officer asked about the drugs and rolling papers on the dresser, and the girlfriend said it was his and she’d take a drug test. The stuff was in plain view and validly seized. State v. Seagle, 2012 Ohio 132, 2012 Ohio App. LEXIS 105 (3d Dist. January 17, 2012).* [Note: If you’re inviting the cops into your house, at least have the presence of mind to hide your dope.]

Plaintiffs’ claim as medical marijuana growers against federal search warrants did not state a claim under the Fourth, Fifth, Ninth, and Tenth Amendments because of Gonzalea v. Raich. Mont. Caregivers Ass’n v. United States, 2012 U.S. Dist. LEXIS 6425 (D. Mont. January 20, 2012):

Moreover, the federal government has never given a free pass to produce and consume marijuana, even for medical purposes. In the so-called “Ogden Memo,” the Department of Justice communicated to its attorneys that certain marijuana users and providers would be a lower priority for prosecution than others. See David W. Ogden, Dep. Atty. Gen., U.S. Dept. of Just., Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana (“Ogden Memo”) (October 19, 2009) (available at www.justice.gov/opa/documents/medical-marijuana.pdf) (accessed on Jan. 13, 2012). For example, “[I]ndividuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana,” would be a lower priority than “large-scale criminal enterprises, gangs, and cartels.” Id. at 1-2. But the Department also made clear that it did not intend to “legalize” marijuana (nor could it). …

. . .

The plaintiffs claim the federal government violated their fourth amendment protection against unreasonable searches and seizures when authorities searched their property and seized thousands of marijuana plants, hundreds of pounds of marijuana, various pieces of equipment and supplies, and money. The plaintiffs claim the searches and seizures were unreasonable only because federal authorities failed to acknowledge that the plaintiffs were acting legally under Montana law. As discussed above, though, whether the plaintiffs’ conduct was legal under Montana law is of little significance here, since the alleged conduct clearly violates federal law. As a result, the searches and seizures were not unreasonable, and the plaintiffs’ fourth amendment claim fails.

Because of a continuing interest in the property, the motion for return of financial records is denied, but defendant’s reading glasses should be returned to him. Defendant’s property was seized in Pennsylvania but defendant was indicted in the Eastern District of Tennessee. Under the rule, a motion for return of property would have to be filed where it was seized, but, because the government doesn’t object, it will be heard here. United States v. Bolze, 2011 U.S. Dist. LEXIS 151731 (E.D. Tenn. December 22, 2011):

“A defendant’s motion for return of property will be unavailing where the government has a continuing interest in the property.” United States v. Francis, 646 F.2d 251, 263 (6th Cir. 1981). Defendant Bolze has appealed his sentence in this case. Accordingly, the Government has a continuing interest in the property while there remains the chance that the case could be remanded. See United States v. Nelson, 190 F. App’x 712, 715 (10th Cir. 2006) (recognizing that “the government has a legitimate interest in maintaining control of property relevant to the prosecution and sentencing of a defendant until his criminal proceedings are final” but also observing that the property must be relevant to sentencing).

“Defendant consented to the search at his residence by calling 911, reporting the crime, and seeking assistance.” State v. Arvie, 73 So. 3d 516 (La. App. 3d Cir. 2011).*

“In this case, we adhere to prior decisions of this court and decide that the ‘automobile exception’ to the warrant requirement of Article I, section 9, of the Oregon Constitution, does not permit a warrantless search of a defendant’s vehicle when the vehicle is parked, immobile, and unoccupied at the time that the police encounter it in connection with a crime.” State v. Kurokawa-Lasciak, 351 Ore. 179, 263 P.3d 336 (2011).*

The defendant shopping center operator had no reasonable expectation of privacy in its parking garages where there was a dumping of industrial waste. State v. Millard Mall Servs., 352 S.W.3d 251 (Tex. App.—Houston (14th Dist.) 2011).*

Plaintiff was arrested for “scalping” a free ticket from a radio promotion, but it turned out there was no law against it in Nevada. The district court erred in finding officer had qualified immunity for the arrest because this was an error of law. Rosenbaum v. Washoe County, 663 F.3d 1071 (9th Cir. 2011)*:

This is not a case where courts disagree about the contours of a constitutional right or where officers may be confused about what is required of them under various circumstances. As our analysis establishes, the statute is unambiguous, and not susceptible to the reading that the county suggests. Therefore, no reasonable officer could believe that Rosenbaum’s conduct violated this statute.

Considering the facts in the light most favorable to Rosenbaum, all reasonably competent officers would have agreed that he was not committing a crime. There is no scalping law in Nevada; it is simply not a crime to sell tickets to a fair—even when the tickets were received for free. His t-shirt did not suggest fraud, nor were the ticket buyers duped by the sale.

His right to family integrity merely from being handcuffed in front of his children was not violated:

We do not imply that verbal abuse—and even verbal abuse to children in the midst of an arrest—would never rise to the level of a constitutional violation. Rather, in this instance, the officers’ conduct does not “shock the conscience.”

Because we conclude that the Rosenbaums’ right to family integrity was not violated, we need not reach the question of whether Forbus is entitled to qualified immunity for the violation of the right to family integrity.

[Note: Criminal defense lawyers: indulge these civil cases. Like Jeff Foxworthy’s joke about his family tree, qualified immunity and the good faith exception have the same origins, and the cases often read the same and apply each other. Also remember that some of the most important Fourth Amendment cases are § 1983 cases.]

There was no reasonable expectation of privacy in the laundry room of a multi-unit apartment building. While a CI was in the apartment, the defendant came down to the laundry area and entered a padlocked room to get what apparently was heroin he gave to the CI back in the room. The police were hiding in the laundry room and watched him enter the room. They got a search warrant for the locked room. Grymes v. State, 202 Md. App. 70, 30 A.3d 1032 (2011).

Based on information developed, the defendant’s PO had reasonable suspicion to believe that defendant was living where he wasn’t supposed to be: his car was outside and he was seen coming and going. The PO went to the home and found him inside. He also had reasonable suspicion to believe defendant’s car had drugs inside, and that justified its search. Commonwealth v. Colon, 2011 PA Super 228, 2011 Pa. Super. LEXIS 3248 (October 28, 2011).*

Defendant’s detention was not so long that it became unreasonable. After the officer found out that defendant was a “known drug violator,” he just asked for consent and got it. State v. McLean, 2011 Tenn. Crim. App. LEXIS 802 (October 28, 2011)*:

In this case, Agent Bales testified that based upon the defendant’s demeanor and after running the records checks, he “just asked” for consent to search. The defendant told Agent Bales to “[g]o ahead.” The video recording reveals no duress or coercion. The video recording, in fact, reflects the defendant’s voluntary cooperation. See Schneckloth, 412 U.S. at 243. Having already deemed the initial stop legal and the subsequent detention reasonable in duration and scope, we further conclude that the defendant consented freely and voluntarily to the search. The trial court correctly denied the motion to suppress.

Officers had a search warrant for evidence of child sexual abuse and possible child pornography involving defendant’s father. During the search, officers saw things that revealed another possible child porn crime, and they got a second search warrant for digital media they found. In searching that, they found evidence of defendant’s making child pornography. The warrant was based on nine month old information, and it was not stale since it was likely that the items sought would still be there because of their enduring value to the possessor. Seizure of items in plain view was also justified since the warrant made them lawfully on the premises. United States v. Darr, 661 F.3d 375 (8th Cir. 2011).*

“Reasonable and prudent” is not unconstitutionally vague in the Kansas following too close statute. Viewing the video of the stop, it was apparent that the officer, too, was impatient with the length of time it was taking to get information back, so he did not lengthen the stop. The video also confirmed that the consent was voluntary. United States v. Hunter, 663 F.3d 1136 (10th Cir. 2011).*

Officers smelled marijuana during a traffic stop, and that gave probable cause as to the entire car, including a passenger’s purse. “[O]nce probable cause exists to search the vehicle, the entire vehicle may be searched. [¶] A police officer with probable cause to search a vehicle may inspect a passenger’s belongings found in the car which are capable of concealing an object of the search. Wyoming v. Houghton (1999), 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408.” State v. Abbuhl, 2011 Ohio 6550, 2011 Ohio App. LEXIS 5401 (5th Dist. December 14, 2011).*

There was probable cause for plaintiff’s arrest for shooting down a police helicopter, even though the charges were dropped and he wasn’t convicted. Kerns v. Bader, 663 F.3d 1173 (10th Cir. 2011).*

When computer checks came back clean, the officer was required to have new reasonable suspicion to continue the stop. Here it was a rental agreement that didn’t make sense, and defendant was a serial driver of rented cars. Then came a dog alert, and that was probable cause for a full search. United States v. Reid, 2011 U.S. Dist. LEXIS 146170 (W.D. La. November 14, 2011), adopted 2011 U.S. Dist. LEXIS 146184 (W.D. La., Dec. 20, 2011).*

Warrant to install GPS device was not violated where the officers were able to monitor it in real time rather than having to retrieve it and download information periodically. State v. Brereton, 2011 WI App 127, 337 Wis. 2d 145, 804 N.W.2d 243 (2011):

P15 We hold that the police were operating reasonably and within their discretion when they attached a GPS device to Brereton’s car. They took the time to obtain a warrant. The warrant authorized them to put a GPS device on the car to monitor the car’s whereabouts. Unlike the device used in Sveum I and II, the GPS device in this case was only in use for four days (until the police obtained information they could use). And the fact that there was a warrant and that the device was in play for only four days is what distinguishes the facts of this case from United States v. Maynard, 615 F.3d 544, 392 U.S. App. D.C. 291 (D.C. Cir. 2010), cert granted, United States v. Jones, No. 10-1259, 2011 U.S. LEXIS 4956, 2011 WL 1456728 (June 27, 2011), a case heavily relied on by Brereton. In that case, the court emphasized the level of intrusion involved when the police, without a warrant, attached a GPS device to the defendant’s car and monitored his whereabouts ” 24 hours a day for four weeks.” Id. at 562-64. Under the facts of this case, however, we see no reason to find that the police overstepped their bounds simply because they were able to monitor the movements in real time rather than needing to continually return to the car, remove the device, and download its information to a computer. Though we can envision scenarios where prolonged use of this device might be unreasonable under the Fourth Amendment, we do not believe this case crosses the line.

Key word: Warrant.

If trial testimony would potentially alter the outcome of a pretrial motion to suppress that was denied, the defendant has the burden to seek to reopen the suppression issue. Without it, the trial evidence cannot be considered. The issue in this case was apparent authority to consent, and the court did not have to decide actual authority if apparent authority exists. United States v. Bass, 661 F.3d 1299 (10th Cir. 2011):

Although Defendant raises some arguments based on evidence elicited at trial, we will consider only the evidence before the district court at the suppression hearing. Because “the district court should have the first opportunity to correct its mistake,” we ordinarily “will not consider trial evidence which undermines a district court decision rendered at a pretrial suppression hearing.” United States v. Parra, 2 F.3d 1058, 1065 (10th Cir. 1993). The district court may consider trial testimony if the defendant renews the suppression motion at trial, see id., but the court ordinarily need not do so if counsel fails to alert the court to how the evidence has been altered or supplemented at trial and why the change would affect the ruling. Absent exceptional circumstances that would justify relief for plain error, the court has no responsibility on its own to compare trial evidence with the evidence at the hearing and then analyze whether its prior ruling should stand. See id.; United States v. Humphrey, 208 F.3d 1190, 1204 (10th Cir. 2000) (if trial testimony would support a different legal justification for suppressing evidence, the defendant must inform the trial court of that new justification in renewing suppression motion at trial); cf. United States v. Burke, 633 F.3d 984, 987-88 (10th Cir. 2011) (failure to include a particular argument in a pretrial suppression motion waives the argument on appeal); Sorensen v. City of Aurora, 984 F.2d 349, 355 (10th Cir. 1993) (failure to raise specific objection to district court’s exclusion of evidence precluded review on appeal).

Similar to Echols, posted just below, defendant was stopped without reasonable suspicion, the court noting that it had dealt with a similar case before with the same officer, and an outstanding warrant was found. The existence of the warrant did not validate the unreasonable seizure because, holding otherwise, would create perverse incentives on the police to stop and question for warrants with no cause at all. United States v. Gross, 662 F.3d 393 (6th Cir. 2011):

To hold otherwise would create a rule that potentially allows for a new form of police investigation, whereby an officer patrolling a high crime area may, without consequence, illegally stop a group of residents where he has a “police hunch” that the residents may: 1) have outstanding warrants; or 2) be engaged in some activity that does not rise to a level of reasonable suspicion. Despite a lack of reasonable suspicion, a well-established constitutional requirement, the officer may then seize those individuals, ask for their identifying information (which the individuals will feel coerced into giving as they will have been seized and will not feel free to leave or end the encounter), run their names through a warrant database, and then proceed to arrest and search those individuals for whom a warrant appears. Under this scenario, an officer need no longer have reasonable suspicion or probable cause, the very crux of our Fourth Amendment jurisprudence. Terry, 392 U.S. at 27-29; Williams, 2010 WL 3061336 at *9, n.6 (“Allowing information obtained from a suspect about an outstanding warrant to purge the taint of an unconstitutional search or seizure would have deleterious effects. It would encourage officers to seize individuals without reasonable suspicion-not merely engage them in consensual encounters-and ask them about outstanding warrants.”).

Furthermore, holding that the discovery of a warrant after an illegal stop is always a taint-removing intervening circumstance so long as the purpose of the stop is not because the officer believes the suspect has an outstanding warrant would create perverse incentives. We do not wish to create a system of post-hoc rationalization through which the Fourth Amendment’s prohibition against illegal searches and seizures can be nullified. Accordingly, while the discovery of the outstanding arrest warrant in this instance may be a factor in the attenuation analysis, it does not establish attenuation. In this case, Williams had no particularized and objective basis for suspecting Gross of criminal activity at the time of the stop, and no reasonable grounds to suspect that there might be an outstanding warrant arose during the duration of the seizure. Gross answered Williams’s questions, provided identification information, and did nothing to arouse particular suspicions. Nevertheless, Williams continued to detain him in order to run a warrant check. There was no rationale for this action.

Defendant was on the premises as a visitor at the time the search warrant was executed. It was obvious that her purse and coat were hers, and a search of them was completely unauthorized. She did not have to object to the search at the time to preserve her claim. State v. Lohr, 164 Wn. App. 414, 263 P.3d 1287 (2011):

¶21 Under a premises search warrant, law enforcement officials may search the premises owner’s personal effects, provided those effects are plausible repositories for the objects named in the warrant. Hill, 123 Wn.2d at 643. A premises warrant “merely gives law enforcement officials permission to detain occupants while they conduct the search.” Worth, 37 Wn. App. at 892. But, a premises warrant does not authorize an officer to conduct a personal search of individuals found at the premises or a search of the personal effects that individuals are wearing or holding. Hill, 123 Wn.2d at 643-44; see also Worth, 37 Wn. App. at 892. Furthermore, “Fourth Amendment protections extend to ‘readily recognizable personal effects … which an individual has under his control and seeks to preserve as private.’” Hill, 123 Wn.2d at 647 (alteration in original) (quoting Worth, 37 Wn. App. at 893).

¶22 As we discuss above, Lohr’s purse was readily recognizable as her personal effect. The relevant question in premises searches is whether an item belongs to an individual not named in the warrant and, thus, whether the item is “not just another household item” subject to the warrant. Worth, 37 Wn. App. at 893. Accordingly, if an item is readily recognizable as belonging to an individual not named in the warrant, the item is not within the warrant’s scope.

¶23 Whether the defendant controlled the item and whether the defendant tried to maintain the item’s privacy are factors that aid in determining if an item was readily recognizable as belonging to someone not named in a premises warrant; but these are not independently dispositive factors. Were we to hold otherwise—i.e., that an item was readily recognizable as belonging to someone not named in the warrant, but nonetheless the search was lawful because the unnamed person did not control the item or failed to take further steps to maintain the item’s privacy (including asking the officer to stop the search)—we would turn on its head the concept of requiring consent to a search otherwise unauthorized by law. Accordingly, we hold that because Lohr’s purse was readily recognizable as her personal effect, Clary unlawfully searched her purse.

Defendant was stopped for a suspected DUI and he was given a portable breath test. Police kept the mouthpiece and tested his saliva for DNA. As far as the defendant was concerned, the DNA was abandoned. His DNA linked him to burglaries. People v. Thomas, 200 Cal. App. 4th 338, 132 Cal. Rptr. 3d 714 (2d Dist. 2011):

The question is whether a defendant may assert a privacy interest in a DNA sample that the police surreptitiously obtain from a publicly discarded item or material. In Gallego, supra, 190 Cal.App.4th 388, a cigarette butt tossed by a murder suspect onto a sidewalk was collected and tested for DNA. The court concluded that the test did not constitute a search because the defendant could claim no privacy interest in the cigarette butt he had abandoned in a public place. (Id. at p. 395.) The court relied on California v. Greenwood (1988) 486 U.S. 35, 40-41 (Greenwood), where the United States Supreme Court found no reasonable expectation of privacy in garbage bags containing evidence of drug trafficking because the bags had been left at the curb for garbage collection. (Gallego, at p. 395.) The Gallego court analogized the DNA testing of the discarded cigarette butt to the lifting of fingerprints from discarded juice containers in People v. Ayala (2000) 24 Cal.4th 243, 278-279. (Gallego, at p. 398.)

The trial court similarly found that defendant had abandoned the mouthpiece of the PAS device because he did not ask the officers to give it to him after the PAS test was over or to tell him what they planned to do with it. Defendant argues that he could not have abandoned a part of a testing device supplied by the police; nor could he have abandoned the DNA he deposited on it unconsciously. The court in Gallego agreed that abandonment requires a voluntary and conscious act, but tossing a cigarette butt on the sidewalk was deemed to be such an act. (Gallego, supra, 190 Cal.App.4th at p. 395.) The out-of-state cases on which Gallego relied went further, finding no expectation of privacy where a defendant could claim no possessory or ownership right in the object on which the DNA was deposited. (Id. at p. 396). For instance, the defendant in Commonwealth v. Cabral (2007) 69 Mass.App.Ct. 68 [866 N.E.2d 429, 433] could not claim to have a reasonable expectation of privacy in saliva he spat on a public sidewalk. Similarly, in Commonwealth v. Perkins (2008) 450 Mass. 834 [883 N.E.2d 230, 238-240], the defendant, who had refused to give blood for DNA testing, was found not to have a reasonable expectation of privacy in a soda can from which he drank during an interrogation. The can was provided by the police, and the defendant knew he could not take it out of the interrogation room. (Id. at p. 240, accord Piro v. State (2008) 146 Idaho 86 [190 P.3d 905, 909-910] [no expectation of privacy in water bottle provided by police in interrogation room].) Alternatively, the defendant abandoned any privacy interest when he failed to clean the can. (Commonwealth v. Perkins, at p. 240.)

Campus police leading a drug dog down the street saw the dog alert on a parked car. They tried to contact the owner, but couldn’t so they used a lockout device to enter the car and conduct a warrantless search. The entry was valid because the car was still “inherently mobile,” and the drug dog alert was valid. State v. Friedman, 2011 Ohio 2989, 194 Ohio App. 3d 444, 957 N.E.2d 815 (9th Dist. 2011):

Her whereabouts were unknown, despite the officers attempting to contact her at her residence, on her cell phone, and at the school’s activity center. Further, there was testimony that there were not enough officers on duty to post an officer with the vehicle. The fact that Friedman was not present when the officers developed probable cause does not detract from the inherent mobility of her vehicle or render inapposite the application of the automobile exception to the warrant requirement. See Carney, 471 U.S. at 390; Chambers, 399 U.S. at 48; Carroll, 267 U.S. at 153.

The officer had cause to stop the defendant walking down the street near the scene of a car crash after dispatch got word from a citizen informant describing a crash and a man looking like defendant walking away. State v. Holnapy, 2011 Ohio 2995, 956 N.E.2d 897 (11th Dist. June 17, 2011).*

A bankruptcy court would not enforce a German court order for e-mails in the U.S. as against our public policy. While the German debtor does not have the protection of the Fourth Amendment when he’s not even in the U.S., he does have protection of ECPA. In re Toft, 453 B.R. 186 (Bankr. S.D. N.Y. July 22, 2011):

Electronic communications privacy is subject to comprehensive statutory protection in the United States under (i) the Wiretap Act, 18 U.S.C. § 2511, et. seq., and (ii) the Privacy Act, 18 U.S.C. § 2701, et. seq. Under the Wiretap Act, civil and criminal penalties can be imposed on any person who “intentionally intercepts . . . any wire, oral, or electronic communication.” 18 U.S.C. § 2511(1)(a). A warrant issued in the course of a criminal investigation upon a heightened showing of necessity is required in order to conduct a wiretap lawfully without the consent of one of the parties to the communication. 18 U.S.C. § 2518. Courts that have applied the provisions of the Wiretap Act to e-mails have held that the clandestine interception of e-mails of an individual, occurring contemporaneously with delivery, constitutes an illegal wiretap. See United States v. Councilman, 418 F.3d 67, 80 (1st Cir. 2005) (holding that for purposes of the Wiretap Act, e-mails can be considered “electronic communications,” and the secret redirection of e-mails interception); see also Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F. Supp. 2d 548 (S.D.N.Y. 2008). The Foreign Representative argues that the inspection of e-mails is not a wiretap because the e-mails are inspected after their delivery and not while in transit, but no authority has been provided to support this narrow construction of the Wiretap Act.

In any event, once an e-mail has been delivered, unauthorized access to the contents of the communication is governed by the Stored Communications Act, 18 U.S.C. § 2701, et seq.,which is part of the Electronic Communications Privacy Act (“Privacy Act”). See Pure Power Boot Camp, 587 F.Supp.2d at 555. The Privacy Act, which is intended to prevent third parties from “obtaining, altering, or destroying certain stored electronic communications,” imposes criminal and civil penalties when a person “accesses an electronic communication service, or obtains an electronic communication while it is still in storage, without authorization.” Id. at 555. The contents of e-mail communications may be released by an ISP only under the specifically enumerated exceptions found in §§ 2702 and 2703 of the Privacy Act. Those exceptions require a search warrant issued under the Federal Rules of Criminal Procedure or a subpoena issued in the course of a criminal investigation. In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606, 611 (E.D. Va. 2008), citing F.T.C. v. Netscape Communs Corp., 196 F.R.D. 559 (N.D. Cal. 2000) (discovery of e-mails from ISP not available under Fed. R. Civ. P. 45). Indeed, one court has held that the disclosure procedures under the Privacy Act are unconstitutional to the extent they permit warrantless searches of e-mails, because a reasonable expectation of privacy exists and e-mails are subject to the Fourth Amendment’s protection from warrantless searches and seizures. See United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010). In this case, the Court does not reach any Fourth Amendment issue — among other things, it is unclear whether the Debtor, a foreign national not located in the United States, would be entitled to claim the protections of the Fourth Amendment. See United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990). Nevertheless, without regard to the Debtor’s constitutional rights under the Fourth Amendment, the Privacy Act has been held to apply irrespective of the foreign nationality of the account holder. See In re § 2703(d) Order, 787 F. Supp. 2d 430 (E.D. Va. 2011) (application of 18 U.S.C. § 2703(d) to foreign users involved in WikiLeaks investigation not an extraterritorial application of U.S. law because statute governs disclosure by the American service provider).

Twitter account information was not subject to a reasonable expectation of privacy in an order for information under 18 U.S.C. § 2703, and the motion to reconsider the government getting access to it was denied. A First Amendment free association claim was also denied. In re § 2703 Order, 787 F. Supp. 2d 430 (E.D. Va. 2011), objection overruled 2011 U.S. Dist. LEXIS 130171 (E.D. Va., Nov. 10, 2011):

The Twitter Order does not demand the contents of any communication, and thus constitutes only a request for records under § 2703(c). Even though the Twitter Order seeks information additional to the specific records listed in § 2703(c)— data transfer volume, source and destination Internet Protocol addresses, and [Twitter’s] correspondence and notes of records related to the accounts — these, too, are non-content “records” under § 2703(c)(1). Therefore, as the targets of mere records disclosure, petitioners may not bring a customer challenge under § 2704.

Petitioners, unable to overcome the language of § 2704, assert in reply that they have standing based on general due process, but cite no authority on point. Moreover, § 2704 seems to recognize that only targets of content disclosures would have a viable constitutional challenge to the compelled disclosure of private communications. Customers who voluntarily provide non-content records to an internet service provider would not enjoy the same level of protection.

. . .

With these principles in mind, the Fourth Circuit has held that no legitimate expectation of privacy exists in subscriber information voluntarily conveyed to phone and internet companies. United States v. Bynum, 604 F.3d 161, 164 (4th Cir. 2010) (citing Smith v. Maryland, 442 U.S. at 744). …

Here, petitioners have no Fourth Amendment privacy interest in their IP addresses. The Court rejects petitioners’ characterization that IP addresses and location information, paired with inferences, are “intensely revealing” about the interior of their homes. The Court is aware of no authority finding that an IP address shows location with precision, let alone provides insight into a home’s interior or a user’s movements. Thus the Kyllo and Karo doctrines are inapposite. Rather, like a phone number, an IP address is a unique identifier, assigned through a service provider. Christie, 624 F.3d at 563; Smith v. Maryland, 442 U.S. at 744. Each IP address corresponds to an internet user’s individual computer. Christie, 624 F.3d at 563. When a user visits a website, the site administrator can view the IP address. Id. Similarly, petitioners in this case voluntarily conveyed their IP addresses to the Twitter website, thus exposing the information to a third party administrator, and thereby relinquishing any reasonable expectation of privacy.

In an attempt to distinguish the reasoning of Smith v. Maryland and Bynum, petitioners contend that Twitter users do not directly, visibly, or knowingly convey their IP addresses to the website, and thus maintain a legitimate privacy interest. This is inaccurate. Before creating a Twitter account, readers are notified that IP addresses are among the kinds of “Log Data” that Twitter collects, transfers, and manipulates. See Warshak, 631 F.3d 266, 2010 WL 5071766 at *13 (recognizing that internet service provider’s notice of intent to monitor subscribers’ emails diminishes expectation of privacy). Thus, because petitioners voluntarily conveyed their IP addresses to Twitter as a condition of use, they have no legitimate Fourth Amendment privacy interest. Smith, 442 U.S. at 744; Bynum, 604 F.3d at 164.

Limited entry into a motel room on smelling a meth cook for safety reasons was reasonable. A search warrant was then obtained. United States v. Reeves, 2011 U.S. Dist. LEXIS 58662 (E.D. Ark. May 31, 2011):

“A warrantless search is reasonable when justified by both probable cause and exigent circumstances.” United States v. Walsh, 299 F.3d 729, 733 (8th Cir. 2002) (quoting United States v. Parris, 17 F.3d 227, 229 (8th Cir. 1994). The Eighth Circuit “has consistently considered safety factors in determining whether exigent circumstances existed.” Id. at 734 (quoting United States v. Boettger, 71 3d. 1410, 1415 (8th Cir. 1995)). The “potential hazards of methamphetamine manufacture are well documented, and numerous cases have upheld limited warrantless searches by police officers who had probable cause to believe they had uncovered an on-going methamphetamine manufacturing operation.” Id. [¶] The Court finds Johnson had probable cause to believe that methamphetamine was being illegally processed in the motel room.

The search warrant was for defendant in jail and sought “D.N.A. in any or all forms that can be collected.” This was not limited to his cell, but it included his person in jail. In any event, the good faith exception makes it valid. Magee v. State, 73 So. 3d 1183 (Miss. App. 2011).*

Defendant’s stop was based on a traffic offense, but the continuation was based on a CI’s statement that defendant was involved in making meth at a particular address, where the officer had heard of prior drug activity. During the stop, the defendant became nervous, and the court finds reasonable suspicion for continuing the detention for the drug dog. Mitchell v. State, 342 S.W.3d 818 (Tex. App.—Amarillo 2011).*

Defendants’ stop was legal, and the only question was whether it was extended. The detention was extended after consent was refused, but the court finds reasonable suspicion on the totality for extending the stop. United States v. Alvarez-Mora, 2011 U.S. Dist. LEXIS 57685 (D. Kan. May 26, 2011).*

The stop was based on reasonable suspicion, and, when stopped, the defendant matched the description of the person wanted for a recent shooting. At this point, the officer had probable cause to search the car for a weapon. United States v. Payton, 2011 U.S. Dist. LEXIS 77298 (W.D. Tenn. June 8, 2011).*

Defense counsel’s failure to make a motion to suppress the search of his house was not IAC because it would have failed anyway on third party consent of the victim. Davis v. State, 311 Ga. App. 699, 716 S.E.2d 710 (2011).*

Defendant consented to a search of his vehicle. In his papers he said that he refused consent four times, but there was no proof of that. People v. Lewis, 2011 V.I. LEXIS 38 (July 5, 2011).*

Even though the issue is pending in the Ohio Supreme Court and the U.S. Supreme Court, the Ohio Court of Appeals for the Fifth District holds that a warrant is required for GPS installation on a vehicle. State v. White, 2011 Ohio 4526, 2011 Ohio App. LEXIS 3742 (5th Dist. September 1, 2011).

Officers were conducting knock-and-talks about grow houses, and at defendant’s girlfriend’s place he and the girlfriend consented to an entry and a search, but he expressly disclaimed any control over the garage or knowledge of who was coming and going from it. His disclaimer was a waiver of any reasonable expectation of privacy in the garage. After a grow operation was found there, a key to the garage was found on defendant. Peraza v. State, 69 So. 3d 338, 36 Fla. L. Weekly D 1988 (Fla. 4th DCA 2011).*

The evidence showed that defendant’s conversation with the officer was consensual, but he was stopped coming out from behind a house that was not his and he had no connection to. When defendant admitted that he had a knife on him, it was permissible for the officer to conduct a patdown. Oglesby v. State, 311 Ga. App. 615, 716 S.E.2d 742 (2011).*

School officials get qualified immunity for a strip search for drugs that occurred before Safford was decided. V.W. v. DaVinci Academy of Science, 2011 U.S. Dist. LEXIS 101529 (D. Utah September 8, 2011).*

The state showed probable cause for a court order for a draw of defendant’s DNA in a sex assault case. State v. Chisholm, 395 S.C. 259, 717 S.E.2d 614 (2011).*

An altercation between plaintiff and a police officer was covered by qualified immunity. The officer had a court order about picking up an elderly lady for safeguarding her. It was not clearly established at the time that the plaintiff did not have to answer questions from the officer, particularly where the officer had reason to believe she had information about where the lady was. Koch v. City of Del City, 660 F.3d 1228 (10th Cir. 2011).*

Probable cause was shown for a search warrant for documentary evidence that included an insurance policy. United States v. Young, 2011 U.S. Dist. LEXIS 126380 (E.D. Mo. March 24, 2011).*

The CI in this case had a track record and was corroborated, and that was sufficient for probable cause. State v. Beauford, 2011 Ohio 5628, 2011 Ohio App. LEXIS 4616 (9th Dist. November 2, 2011).*