Volokh Conspiracy: Panel on United States v. Jones, the Fourth Amendment GPS Case by Orin Kerr:

A few weeks ago, I participated on a panel about United States v. Jones, the GPS case, at William & Mary Law School. The panel featured Steve Leckar, who will be arguing the case for Jones; Melanie Wilson, a criminal procedure professor at the University of Kansas (visiting at W&M); and Paul Marcus of W&M. The video has just been posted, and it’s here for those interested. The oral argument in Jones will be on Tuesday.

Chemerinsky: Keeping Up with the Joneses—How Far Does the ‘Reasonable Expectation of Privacy’ Go?

Standing is a predicate in forfeiture cases. “In a forfeiture case, standing ‘must be decided before any motion by the claimant to dismiss the action.’ Suppl. R. G(8)(c) (ii)(A).” United States v. $162,576.00 in United States Funds, 2011 U.S. Dist. LEXIS 125858 (M.D. Ga. November 1, 2011). (Compare this post from two days ago that standing is not a predicate in a criminal case; the court can go to the merits first.)

A van was stopped for being in a “high crime area” which was just a residential area that had past burglaries. The driver did nothing wrong in the time it was followed, and the officer suspicioned that the vehicle was scouting houses to break into. The motion to suppress should have been granted. State v. Studley, 2011 Ohio 5563, 2011 Ohio App. LEXIS 4551 (2d Dist. October 28, 2011).*

The officer reached in the car in an attempt to keep the defendant from driving off, and he had reasonable suspicion. Nothing was seized except the defendant himself. There was nothing to suppress. State v. Craver, 2011 Ohio 5542, 2011 Ohio App. LEXIS 4537 (2d Dist. October 28, 2011).*

Two vehicles stopping on a residential street where one person got of a car and went to the other car for a second, got something, and went back to his car was reasonable suspicion that a hand-to-hand drug transaction occurred. State v. Keller, 2011 Ohio 5546, 2011 Ohio App. LEXIS 4535 (2d Dist. October 28, 2011).*

Wired.com: Threat Level: Feds’ Use of Fake Cell Tower: Did it Constitute a Search? by Kim Zetter:

Federal authorities used a fake Verizon cellphone tower to zero in on a suspect’s wireless card, and say they were perfectly within their rights to do so, even without a warrant.

But the feds don’t seem to want that legal logic challenged in court by the alleged identity thief they nabbed using the spoofing device, known generically as a stingray. So the government is telling a court for the first time that spoofing a legitimate wireless tower in order to conduct surveillance could be considered a search under the Fourth Amendment in this particular case, and that its use was legal, thanks to a court order and warrant that investigators used to get similar location data from Verizon’s own towers.

The government is likely using the argument to avoid a court showdown that might reveal how stingrays work and open debate into the tool’s legality.

Stingrays spoof a legitimate cellphone tower in order to trick nearby cellphones and other wireless communication devices into connecting to the tower, as they would to a real cellphone tower. When devices connect, stingrays can see and record their unique ID numbers and traffic data, as well as information that points to a device’s location. To prevent detection by suspects, the stingray sends the data to a real tower so that traffic continues to flow.

NYT: Dismal Tale of Arrest for Tiniest of Crimes by Jim Dwyer. Apparently one always needs his or her driver’s license on a visit to New York City, like getting on an airplane:

The arresting officer came by the cell, Samantha Zucker said, to make snide remarks about finding her with a friend in Riverside Park after its 1 a.m. closing.

For instance:

“He was telling me that I needed to get a new boyfriend, that I should get a guy who takes me out to dinner,” Ms. Zucker said. “He mocked me for being from Westchester.”

Early in the morning on Oct. 22, a Saturday, Ms. Zucker, 21, and her friend Alex Fischer, also 21, were stopped by the police in Riverside Park and given tickets for trespassing. Mr. Fischer was permitted to leave after he produced his driver’s license. But Ms. Zucker, on a visit to New York City with a group of Carnegie Mellon University seniors looking for jobs in design industries, had left her wallet in a hotel two blocks away.

She was handcuffed. For the next 36 hours, she was moved from a cell in the 26th Precinct station house on West 126th Street to central booking in Lower Manhattan and then — because one of the officers was ending his shift before Ms. Zucker could be photographed for her court appearance, and you didn’t think he was going to take the subway uptown while his partner stayed with her at booking, did you? — she was brought back to Harlem.

Reminds me of this for trying to pass through the Krakow ghetto:

The officers’ delay in their entry belied the suppression hearing claim of exigent circumstances for the entry into defendant’s building, and the motion to suppress had to be granted. United States v. Edwards, 2011 U.S. Dist. LEXIS 126059 (E.D. Wis. October 31, 2011) rejecting R&R 2011 U.S. Dist. LEXIS 126065 (E.D. Wis. September 15, 2011):

The magistrate found that exigent circumstances existed here because he concluded that it was reasonable for the officers to conclude that a burglary was in progress. (Mag. Rec. 6).

The Court disagrees, and finds that the warrantless entry in this case was not justified by exigent circumstances. First, the Court finds that exigent circumstances simply did not exist. In Patino, the Seventh Circuit held that exigent circumstances did not exist where an officer waited thirty minutes for backup to arrive. 830 F.2d at 1416. In particular, the Patino court was concerned with the officer’s failure to telephonically seek a warrant during that thirty minute wait. Id. Additionally, the Patino court noted that the officers could have secured the exits to prevent escape while awaiting a warrant. Id.

Here, similar to the important facts in Patino, Officer Dorn substantially delayed entry of the building without seeking a search warrant—demonstrating a lack of exigent circumstances. He twice called for backup and also arranged to contact the keyholders of the building prior to entering the building. Though the precise amount of time this took is unclear, nonetheless it is clear that there was ample time for Dorn to seek a search warrant, which he never did. The officers could have secured the exits to prevent escape if they were truly concerned with a burglary, but they did not do so. Therefore, this Court finds that the facts amply demonstrate that there were not exigent circumstances prior to the officers’ initial entry.

Second, even if there were exigent circumstances, the Court finds that the officers could not reasonably have believed that a burglary was in progress. It is true that Edwards was a suspect in a string of burglaries and was seen by Dorn exiting and re-entering the building, but this Court finds that other circumstances should have reasonably put the officers on notice that a burglary was not in progress. In fact, less than two days prior to the events in question, the police department had held a briefing at which they discussed Edwards as a suspect. During that briefing, the police noted that Edwards was at least a “possible” renter of the building at 211 North Main Street. Of course, it was that very building that the police now claim they suspected Edwards of burglarizing.

This Court finds it highly suspect, and certainly unreasonable, that Dorn and Zywicki both failed to remember that Edwards was a renter of the building. Additionally, it is unreasonable that none of the officers sought to examine the briefing materials and discover that fact when Dorn noted that he suspected Edwards to be in the building. Finally, it is unreasonable that the officers would have arranged to call the keyholders of the building, but failed to identify Edwards as one of those keyholders and make an attempt to contact him.

WSJ.com: Feds Shift Tracking Defense / Prosecutors in Arizona Case Drop Position That ‘Stingray’ Use Didn’t Require Warrant by Jennifer Valentino-Devries:

The U.S. Department of Justice now says its use of a cellphone-tracking device in a controversial Arizona case could be considered a “search” under the Fourth Amendment, a tactical move legal experts say is designed to protect the secrecy of the gadgets known as “stingrays.”

For more than a year, federal prosecutors have argued in U.S. District Court that the use of the stingray device—which can locate a mobile phone even when it’s not being used to make a call—wasn’t a search, in part because the user had no reasonable expectation of privacy while using Verizon Wireless cellphone service. Under that argument, authorities wouldn’t need to obtain a search warrant before using one of the devices.

NPR’s Diane Rehm Show at 11 am ET: The Constitution Today: Fourth Amendment

The Constitution Today: The 4th Amendment protects Americans against unreasonable searches and seizures. How modern technology is testing its boundaries.

Privacy Law: ‘Mosaic Theory’ and Megan’s Laws by Wayne A. Logan, Florida State University College of Law in Cardozo Law Review de novo, p. 95 (2011)

Abstract:

This essay urges reexamination of the privacy implications of registration and community notification (RCN) laws, commonly known as Megan’s Laws. Applying the analytic construct recently employed by the D.C. Circuit in United States v. Maynard to conclude that extended use of a GPS tracking device constitutes a search for Fourth Amendment purposes, the essay argues that the collection and aggregation of registrant data entailed in RCN implicates a protectable Fourteenth Amendment privacy interest. In both contexts, the government collects nominally public data – in Maynard, car travel, with RCN, registrants’ home/work/school addresses, physical traits, etc. – and creates an informational “mosaic” of personal life that would not otherwise practically exist.

With the Supreme Court’s recent grant of certiorari in Maynard (docketed sub nom. United States v. Jones), mosaic theory will soon be the subject of considerable debate. The essay seeks to contribute to this debate, pushing the applicable bounds of the theory and allowing for a more robust examination of RCN, as well as similar data-based social control strategies likely to emerge in coming years.

SSRN: Fourth Amendment Future: Remote Computer Searches and the Use of Virtual Force by Susan W. Brenner, University of Dayton School of Law, in 81 Miss. L. J. No. 1 (2011)

Abstract:

This article examines the Fourth Amendment implications of two tactics that may become part of law enforcement’s efforts to investigate and otherwise control criminal activity. The first is the use of certain types of software, most notably Trojan horse programs, to conduct surreptitious, remote searches of computers and computer media. The other tactic is the use of “virtual force,” e.g., using Distributed Denial of Service and other attacks to shut down or otherwise disable websites that host offending content and/or activities.

HuffPo: Google Refused Law Enforcement Request To Pull Police Brutality Video:

A U.S. law enforcement agency petitioned Google to take down a YouTube video showing police brutality, the web giant revealed in a new report.

Google said it refused the request, placed sometime between January and June of this year, though it did not specify why.

“We received a request from a local law enforcement agency to remove YouTube videos of police brutality, which we did not remove,” Google wrote in its Transparency Report. “Separately, we received requests from a different local law enforcement agency for removal of videos allegedly defaming law enforcement officials. We did not comply with those requests, which we have categorized in this Report as defamation requests.” (hyperlinks in original)

Baltimore Sun Op-Ed: Stop and frisk: The Fourth Amendment takes a hit | So what if it works? Is that worth sacrificing constitutional rights? by Leonard Pitts Jr.:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” — Fourth Amendment to the Constitution of the United States

Just in case you forgot.

There has been, after all, an appalling amount of forgetting where that amendment is concerned. And New York City has become the epicenter of the amnesia. Yes, the “stop and frisk” policy of questioning and searching people a cop finds suspicious is used elsewhere as well. But it is in the big, bruised apple that the issue now comes to a head.

Federal agents recently arrested a New York City cop on charges of violating the civil rights of an African-American man. Officer Michael Daragjati allegedly stopped the man in April and threw him against a parked van to search him. No drugs or weapons were found, but Mr. Daragjati reportedly became angry the man questioned his rough treatment and requested the officer’s name and badge number. So Mr. Daragjati ran him in on a charge of resisting arrest. Later, talking on the phone to a friend, he bragged that he had “fried another n—-r” and that it was “no big deal.” This was overheard by the feds, who had him under surveillance in a separate investigation.

NYT Opinion: You Want to Track Me? Here You Go, F.B.I. by Hasan M. Elashi:

ON June 19, 2002, I ran into a bit of a problem that turned my life upside down. It happened at the Detroit airport as I was entering the country. I realized something wasn’t right when the immigration agent at United States Customs slid my passport through the reader, then froze. “Is there something wrong?” I asked. He was still frozen. After a few moments, he said, “Follow me, please,” and I ended up at the Immigration and Naturalization Service’s airport office.

The Linn College drug testing TRO granted back in September has been extended. See St. Louis Beacon: Order blocking drug tests at Linn State Tech echoes ruling by Florida judge by Dale Singer.

Law.com: Cell Phone Data and Expectations of Privacy by Peter A. Crusco New York Law Journal:

One can hear the din of cellular telephones everywhere: movie theaters, libraries, and restaurants, to name a few places. While cell phones keep us connected to those who are important in our lives, the technology also has the potential of exposing our movements to others. Cellular telephone transmissions record the general locations of the users through transmissions via cell towers. Over the last 50 years, Fourth Amendment doctrine has continued to evolve to keep pace with technology, endeavoring to protect the privacy and security of every individual against arbitrary intrusions by government agents. More recently, there have been significant though conflicting judicial interpretations concerning government access to cellular telephone records (cell site location information or CSLI), which data has been essential in many criminal investigations. This article will address these cases and the legal issues they present.

Volokh Conspiracy: My View of the Second Question Presented in United States v. Jones, the Fourth Amendment GPS Case by Orin Kerr:

This is my second post on United States v. Jones, the case on GPS and the Fourth Amendment. In this post, I want to explore whether the act of installing the device should count a Fourth Amendment search or seizure. My bottom-line is that I find this a surprisingly difficult and open question: Justices wishing to apply the Fourth Amendment in a way that is consistent with Fourth Amendment text, history, principles, and precedents could plausibly go either way. One implication of this uncertainty is that if the Justices decide to regulate GPS under the Fourth Amendment, focusing on the installation of the device is a much better option than trying to jump into the thicket of issues discussed in my first post about use of the device once installed. At the same time, it’s worth noting two additional wrinkles. The first is the uncertain standard of reasonableness that would follow from a conclusion that installing the device is a search or seizure. The second is the important role of statutory regulation, which may deal with some of the concerns raised by those who want the Supreme Court to construe the Fourth Amendment to sharply limit GPS monitoring.

Also posted on ScotusBlog.

Colorlines: ICE Agent During Search: ‘The Warrant is Coming Out of My Balls’ by Jorge Rivas:

The ACLU of Tennessee filed a lawsuit this week in federal court on behalf of fifteen residents of an apartment complex in Nashville, TN who say they were targets of an unlawful immigration raid. The defendants allege that ICE agents and Metro Nashville police officers forced their way into their homes without warrants. When residents asked the officers to show a warrant, one agent reportedly said, “We don’t need a warrant, we’re ICE.” Then, gesturing to his genitals, the officer reportedly said “the warrant is coming out of my balls.”

TPMMuckraker: Judge Orders Injunction On Florida’s Welfare Drug Testing Law by David Taintor:

A U.S. district judge on Monday ordered an injunction on a Florida law requiring welfare applicants to pass a drug test before receiving state benefits.

An ACLU lawsuit filed in September claimed the Florida law violates the Fourth Amendment by requiring welfare applicants to submit to a “suspicionless” drug test. The suit was filed on behalf of Luis Lebron, a 35-year-old Orlando resident and Navy veteran who applied for welfare benefits but refused to take the drug test.

Miami Herald here.

Cato@Liberty: A Response to Orin Kerr on GPS Tracking by Julian Sanchez:

Orin Kerr—easily one of our most lucid thinkers when it comes to applying the Fourth Amendment to new technologies—argues at Volokh Conspiracy that, while it’s a hard call whether the installation of a GPS tracking device to a vehicle counts as a Fourth Amendment “search” or “seizure,” the Supreme Court should not treat the use of such devices as a search when it decides United States v. Antoine Jones later this term. Rather, he argues, the Court should hew to a bright line test that makes monitoring “inside” protected spaces a “search” requiring a warrant, while “outside” monitoring—as, for example, of a car traveling on public roads—is always permitted, regardless of the technological means by which that monitoring is carried out, or how extensive that monitoring is in scope or duration. This is in line with Kerr’s reasoning in a thoughtful and important article about the application of the Fourth Amendment to the Internet, which I’ve already written about in this space.

While there was no traffic violation justifying the stop, the mere presence of a work van driving slow in this rural Vermont area where there was no attractions to a trained border patrol agent strongly supported reasonable suspicion that the van was looking for a place to drop persons or drugs. United States v. Funez-Pineda, 2011 U.S. Dist. LEXIS 121926 (D. Vt. October 20, 2011)*:

In this case, Agent Hartness did not observe the operator of the vehicle, nor did he see the operator commit any traffic violations. A record check on the license plate did not return any suspicious information. Additionally, Agent Hartness did not observe that the van was carrying excess weight.

On the other hand, the work van’s status as a vehicle associated with smuggling, its out-of-state plates, its presence in a sparsely populated area of Vermont with no local attractions and with no discernable purpose, the early time of day, the van’s prolonged slow speed, and the proximity of Route 114 in Norton to the border all contribute to a reasonable suspicion that the van’s operator may have been engaged in smuggling activity and was looking for a place to pick up or drop off a person or contraband.

In analyzing the relevant facts, the court regards them from the perspective of a trained Border Patrol agent. …

The 22 page affidavit for the search warrant clearly showed probable cause, and it supported search and seizure of electronic devices, here a thumb drive, where nexus was shown. United States v. Mehilove, 2011 U.S. Dist. LEXIS 121247 (D. Minn. September 15, 2011).*