The Atlantic: Do Police Need a Warrant to Search Your Phone?

As the Occupy demonstrations have grown, videos and photographs taken by protesters have begun to circulate on Twitter, YouTube, Facebook, and elsewhere online. Many, like the one below or those highlighted by James Fallows and Alexis Madrigal, show police using physical force or pepper spray against the assembled protesters.

If you’re at Occupy Wall Street or one of its spin-off incarnations, you may find yourself in a situation in which a member of the police asks for you to hand over your cell phone or your camera. In particular, if you’re there as a citizen-journalist, hoping to document and publish the action, you may find your work — sources, interviews, video footage — at risk. Can you refuse to turn over your devices? Do the police have a right to search your photos and video footage? Do they need a warrant to do so?

There’s no simple answer — the laws are varied state to state and, to make matters more complicated, constantly in flux. The basic principle is that police need a warrant to both seize and search your cell phone, but that principle is not absolute. There are two major reasons that police may not need a warrant to either search or seize your phone: if you are arrested, or, if they believe that you have footage of a crime taking place and that you plan to destroy the footage.

BLT: Judge: No Warrant Needed For Cell Phone Location Data:

Prosecutors do not need a warrant to compel a cellular phone service provider to turn over data about call location, a federal judge in Washington said in a ruling unsealed Wednesday.

The ruling (PDF) examines the government’s attempt to get data from the undisclosed service provider amid a U.S. Attorney’s Office investigation of an armed robbery of an armored truck.

In the Matter of Application of the United States of America for an Order Authorizing Disclosure of Historical Cell Phone Location Date, 11-449 (D.D.C. October 3, 2011).

Law.com: Justices struggle over strip-search case by Marcia Coyle:

The Supreme Court on Wednesday struggled with whether jail officials may conduct intrusive strip searches of all arrestees, even of those detained for minor offenses, or whether the Constitution demands something more.

Thomas Goldstein of Washington, D.C.’s Goldstein & Russell, urged the justices to hold that the Fourth Amendment requires reasonable suspicion for strip searches of all arrestees in order to protect individual integrity and dignity. “What is not subject to a reasonable suspicion standard is anything other than close inspection of a person at arm’s length,” he added.

Grits for Breakfast: Whether SCOTUS says GPS tracking is constitutional, markets may decide if it’s viable [link not working now]:

Fourth Amendment fans and foes alike are awaiting oral arguments this fall in United States v. Jones, which will determine whether police require a warrant to surreptitiously put a GPS tracking device on your car.

Obviously, Grits thinks a warrant should be required, but frankly a warrant requirement isn’t that great a barrier and the case made me wonder about technology to identify such devices. It turns out for $500 bucks you can purchase a device that will locate GPS trackers as well as wiretaps, wireless taps, and even hidden cameras. Ironically, with SCOTUS focused on the use of GPS trackers by the government, the manufacturer is promoting the device to protect against thieves:

Don’t Give Thieves Access To Your Personal Information Or Possessions

Being spied on can be more than just embarrassing. Oftentimes, thieves use eavesdropping equipment or “bugs” such as sound amplifying devices for audio surveillance or hidden cameras for video surveillance to find out valuable information about your personal finances and possessions. Your private conversations can give thieves all the information they need to steal your identity, break into your home, or even abduct your children. Protect yourself with the Frequency Finder Bug Detector Pro.

Defendant refused to consent to a search of his car, but, on the video, he did consent to a dog sniff when separately asked about that. He argued that his consent was just going along with the officer, but the court finds from the video that defendant’s voice inflection was true consent. The first question was less than “ideal” but the officer followed up with further questions that were unequivocal. United States v. Grant, 2011 U.S. Dist. LEXIS 116699 (D. Neb. October 5, 2011)*:

… Upon review of the traffic stop video, the court can hear the inflection in Grant’s voice when he responded with an unequivocal “sure,” affirming his consent to allow Sergeant Wilcynski to call a canine officer. In addition to this verbal consent, Grant was an adult who understood English, was not under the influence of drugs, and had prior arrest experience. The encounter had lasted only a few minutes up to that point. Sergeant Wilcynski made no threats, promises, or misrepresentations, and Grant was not under arrest. Grant later engaged Sergeant Wilcynski in cordial conversation while they waited for the canine officer and even expressed his ease with waiting while a storm passed over his intended route. Under these circumstances, the court finds Grant voluntarily consented to the twenty-two minute post-stop encounter. For this reason, the court finds the detention and search were constitutionally reasonable.

Defendants were indicted for seditious conspiracy in a militia group known as the Hutaree planning action against the government that would include setting up an ambush of police officers. The government infiltrated the group by informant and passed a wealth of information that formed the basis of seven search warrants which were found to have issued with probable cause. United States v. Stone, 2011 U.S. Dist. LEXIS 116800 (E.D. Mich. August 3, 2011).*

Wired.com: Calif. Governor Veto Allows Warrantless Cellphone Searches by David Kravets:

California Gov. Jerry Brown is vetoing legislation requiring police to obtain a court warrant to search the mobile phones of suspects at the time of any arrest.

The Sunday veto means that when police arrest anybody in the Golden State, they may search that person’s mobile phone — which in the digital age likely means the contents of persons’ e-mail, call records, text messages, photos, banking activity, cloud-storage services, and even where the phone has traveled.

Op ed in Merced Sun Star: Our View: Cell phone bill veto erodes rights.

Ft. Myers News-Press: Police retraining: Cape Coral police receive more Fourth Amendment issues training after incorrect home entry:

Cape police officers were given additional training in Fourth Amendment issues earlier this year after it was determined two officers entered a home without justification.

The officers had been asked to assist a code enforcement officer who was issuing a citation regarding a boat to the occupant of a home on Northeast 36th Street.

When they arrived, the officers knocked on the front door but received no answer.

After walking around back to see if anyone was home, the officers noticed the screen door to the lanai was partially open, as was the rear glass slider.

After verbally announcing themselves, the officers entered the home with guns drawn.

I’m impressed–a police department that believes in the Fourth Amendment.

My SCOTUSBlog commentary on Florence v. Board of Chosen Freeholders of the County of Burlington strip search case argued today, October 12th:

At issue in Florence is “reasonableness” of a jail strip search of a man brought in because of a computer error on whether he had paid a past traffic fine. In Bell v. Wolfish the Court held that pretrial detainees in the Manhattan MCC could be strip searched during their confinement because it was reasonable on a balancing of interests.

Those detainees, however, were either held on a criminal complaint or indicted. How does that relate to an accidental arrestee, a person brought to jail because of an erroneous traffic warrant that arose after the person was stopped on the street by chance, and a warrant comes up when his driver’s license number is run?

Reasonableness has always been stated by the Court to be the “fundamental inquiry” (see, e.g., United States v. Chadwick) or “touchstone” in Fourth Amendment cases. (see, e.g., Robinette v. Ohio; Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls). Was it reasonable to strip search Mr. Florence when there was virtually no chance he would be introducing a weapon or contraband into the jail? Does the Fourth Amendment “reasonableness” and balancing inquiry permit the Court to find this strip search invalid in light of what some members of the Court will undoubtedly see as the weighty interest in jail security automatically tipping the balance for the government?

And what about “lesser-intrusive means”? An accidental detainee like Mr. Florence should not be subjected to the indignity of his strip search. Even so, how does one apply such a rule (a “bright-line rule”?) so jailers will understand it? That didn’t stop the Court in holding that a detainee couldn’t be detained more than 48 hours without seeing a judicial officer for a probable cause finding in County of Riverside v. McLaughlin, but that case did not involve jail security. But, Earls refused to even going in the “lesser-intrusive measures” for drug testing students. Indeed, such a standard has always been scrupulously avoided by the Court. (See, e.g., United States v. Martinez-Fuerte and Colorado v. Bertine).

An irony lost on the parties [only one respondent mentions it in passing for something else] is Herring v. United States holding that the exclusionary rule would not be applied to persons arrested and then searched on accidental warrants because there was only mere negligence in not purging the warrant. Now, that mere negligence leads to the gross indignity of a strip search of a man with papers in his car showing that the warrant for him is bogus.

If Mr. Florence loses, then we have a fait accompli. “Reasonableness” has been forever subordinated to “jail security,” and mere incantation of the words makes the Fourth Amendment evaporate in any jail setting. No exclusionary rule under Herring; no civil action under Florence; the government can’t lose; perfect. Is that where we are headed? Gail Atwater’s driving without a seat belt would then have caused her to risk being strip searched because her arrest was valid under the Fourth Amendment even though the offense was “fine only.” And what about retaliatory arrests for “contempt of cop”? Can officers then arrest people to purposely add to their indignity knowing that a strip search will occur, too? That already happens with automobile searches, so why not for any arrest?

NYTimes.com: States Adding Drug Test as Hurdle for Welfare A. G. Sulzberger:

As more Americans turn to government programs for refuge from a merciless economy, a growing number are encountering a new price of admission to the social safety net: a urine sample.

Policy makers in three dozen states this year proposed drug testing for people receiving benefits like welfare, unemployment assistance, job training, food stamps and public housing. Such laws, which proponents say ensure that tax dollars are not being misused and critics say reinforce stereotypes about the poor, have passed in states including Arizona, Indiana and Missouri.

Defendant’s computer was searched over a P2P file sharing program, and child pornography was found. To show probable cause, it was not required that the functionality of the software be explained to the magistrate. State v. Mahan, 2011 Ohio 5154, 2011 Ohio App. LEXIS 4259 (8th Dist. October 6, 2011).*

Ohio recognizes that a full custodial arrest for a minor offense violates the state constitution because it rejected Atwater in State v. Brown, 99 Ohio St. 3d 323, 2003 Ohio 3931, 792 N.E.2d 175 (2003). Defendant’s search on arrest for a minor offense was invalid. State v. Hall, 2011 Ohio 5155, 2011 Ohio App. LEXIS 4255 (8th Dist. October 6, 2011).*

Habeas denied. “The petition also contains an argument that the illegal search and seizure somehow lead his plea to be involuntary. Any argument regarding the voluntariness of his plea does not warrant the issuance of the writ.” Willis v. Miller, 2011 Ohio 5166, 2011 Ohio App. LEXIS 4256 (7th Dist. September 26, 2011).* [Would have to be an IAC claim.]

Tomorrow Florence v. Board of Chosen Freeholders of the County of Burlington, 10-945.

Issue: Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search whenever an individual is arrested, including for minor offenses.

So, how far does “reasonableness” go? Does “jail security” always trump “reasonableness”?

A constable came to defendant’s house with a writ of execution to remove him from the premises, and he smelled marijuana. He observed defendant packing in a hurry and saw a lot of cash in the house. He called the local police, and they saw some expensive stuff in his SUV allegedly illegally parked in front of the house. The police decision to impound his car was clearly pretextual, because impoundment was done to search, not to protect the property inside. A gun found in the car was suppressed. United States v. Scott, 2011 U.S. Dist. LEXIS 115356 (D. Nev. August 23, 2011)*:

Because of these discrepancies regarding what exactly constitutes NLVPD policy, the Court’s task of determining whether the officers involved complied with that policy when conducting the inventory search becomes somewhat perplexing. In any case, the Court need not attempt to divine the exact nature of NLVPD’s impound and inventory search policies because the Court finds that the inventory search was a ruse for general rummaging in order to discover incriminating evidence, rather than a search conducted to protect Scott’s property or to protect NLVPD from liability.

An Arby’s store clerk called 911 to report that a man who matched the description of somebody who robbed the place once before was in the store pacing around the counter, and there was a person in a car waiting outside. This was reasonable suspicion when the police arrived. United States v. Ussery, 2011 U.S. Dist. LEXIS 115184 (W.D. N.C. September 9, 2011)* [Indeed, it sounds a lot like Terry.]

Defendant participated in the decision to waive a particular Fourth Amendment argument, and his defense counsel was not ineffective. United States v. Young, 2011 U.S. Dist. LEXIS 115336 (D. Alaska September 4, 2011).*

NYTimes.com: Secret U.S. Memo Made Legal Case to Kill a Citizen by Charlie Savage:

The Obama administration’s secret legal memorandum that opened the door to the killing of Anwar al-Awlaki, the American-born radical Muslim cleric hiding in Yemen, found that it would be lawful only if it were not feasible to take him alive, according to people who have read the document.

. . .

Then there was the Bill of Rights: the Fourth Amendment’s guarantee that a “person” cannot be seized by the government unreasonably, and the Fifth Amendment’s guarantee that the government may not deprive a person of life “without due process of law.”

The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal. It cited court cases allowing American citizens who had joined an enemy’s forces to be detained or prosecuted in a military court just like noncitizen enemies.

It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.

Defendant was pulled over and arrested on a warrant. He pulled into a high school parking lot when he was stopped. Taking the car for inventory was unnecessary under the regulations at issue. People v. Spencer, 408 Ill. App. 3d 1, 948 N.E.2d 196, 350 Ill. Dec. 127 (2011):

Defendant further maintains that the evidence presented at the suppression hearings establishes that the Fremd parking lot was private property and that the police did not have the authority to tow his vehicle because his car was legally parked therein. The police have the authority to seize and remove vehicles that are impeding traffic or threatening public safety and convenience. Clark, 394 Ill. App. 3d at 348. However, the mere fact that an arrestee’s car would be left unattended is insufficient to justify impoundment unless the vehicle would be illegally parked. People v. Ursini, 245 Ill. App. 3d 480, 483 (1993).

. . .

We determine that the evidence presented at the suppression hearings does not establish that the impoundment of defendant’s vehicle was lawful. Although Detective Pistorius testified that defendant’s car was not legally parked at the time he was arrested, he did not provide the reason it was not legally parked. The State did not present any evidence showing that defendant was prohibited from parking in the lot, and Detective Pistorius testified that he did not recall seeing any signs indicating that parking was forbidden or that unauthorized vehicles would be towed. Also, the State did not present any evidence showing that defendant’s vehicle was impeding traffic or threatening public safety (Clark, 394 Ill. App. 3d at 349), and Detective Pistorius testified that it was not impeding traffic when defendant was arrested. While the State asserts in its brief that Detective Pistorius would have potentially put schoolchildren at risk by leaving the vehicle in the parking lot, it does not explain, nor can we see, how the car’s presence in the lot would have endangered any of the school’s students. In addition, the State did not present any evidence showing that defendant consented to the impoundment of his vehicle or that an employee or representative of Fremd High School requested that it be towed. Schultz, 93 Ill. App. 3d at 1076. Furthermore, Detective Pistorius testified that the car was impounded pursuant to RMPD policy that an arrested person’s vehicle shall be towed, and not because it was illegally parked.

Thus, the record shows that defendant made a prima facie case that the evidence that was taken from the lock box in the trunk of his car was obtained during an illegal search by showing that the search was conducted without a warrant. Gipson, 203 Ill. 2d at 306-07. The State was then required to come forward with evidence rebutting that claim and showing that the evidence was collected during a legal inventory search. Id. at 307. The mere fact that defendant’s vehicle would have been left unattended is insufficient to justify its impoundment. Ursini, 245 Ill. App. 3d at 483. In this case, the State did not present sufficient evidence to show that the threshold requirement of a legal inventory search, that the impoundment of defendant’s vehicle was lawful, was met (Clark, 394 Ill. App. 3d at 348-49), and we therefore determine that the warrantless search of defendant’s vehicle cannot be justified as an inventory search.

The officer was monitoring Limewire computer traffic for child pornography, and he discovered downloads from an IP address. There was a “put and paste” error in the search warrant application that created a date error, but it was found to be a simple mistake, not subject to exclusion. The investigation revealed defendant’s IP address was used to download child pornography, and the four corners of the affidavit objectively showed probable cause to a reasonable careful person for a search warrant of defendant’s house for his computers. Defendant also raised a Brady issue at the suppression hearing, but he got no ruling on it before the conditional plea, and it was not preserved in the conditional plea for appeal. Lefferdink v. State, 2011 WY 75, 250 P.3d 173 (2011).*

A police officer seeing a knife does not have reasonable suspicion to believe that a knife is a “gravity knife” [one where the blade opens by gravity or flipping the wrist or a switchblade]. A plain knife is legal, but a gravity knife is not. People v Brannon, 2011 NY Slip Op 3676, 16 N.Y.3d 596, 925 N.Y.S.2d 393, 949 N.E.2d 484 (2011).*

Defendant was stopped for a traffic offense, and he was found to have an arrest warrant outstanding. He was arrested. The officer said that defendant had a baggie of drugs hanging out of his waistband, but defendant said it was hidden under his genitals and the search was too intensive. It didn’t matter because he was validly arrested, and it would have been found anyway. United States v. Derrick, 412 Fed. Appx. 177 (10th Cir. 2011) (unpublished), cert. denied, 180 L. Ed. 2d 835, 2011 U.S. LEXIS 4439 (U.S., June 13, 2011).*

The officer had reasonable suspicion defendant’s truck had contraband, so the use of the dog was valid, and the search of the truck was valid at the least by inevitable discovery. United States v. Harrelson, 2010 U.S. Dist. LEXIS 141334 (M.D. Fla. December 27, 2010).*

Taking DNA samples from convicted felons did not violate the Fourth Amendment. State v. Emerson, 2011 Ohio 593, 192 Ohio App. 3d 446, 949 N.E.2d 538 (8th Dist. 2011), Discretionary appeal allowed, 128 Ohio St. 3d 1556, 2011 Ohio 2905, 949 N.E.2d 43, 2011 Ohio LEXIS 1562 (Ohio, June 22, 2011).*

Arrest for expired registration and lack of insurance cannot justify a search incident of the car’s interior under Gant, in a case GVRed after Gant (reversing prior holding). State v. Carter, 200 N.C. App. 47, 682 S.E.2d 416 (2009), on remand from Carter v. North Carolina, 129 S. Ct. 2158, 173 L. Ed. 2d 1153 (U.S., 2009).

Officer’s prior knowledge of the defendant’s heavy meth involvement was RS for a patdown when defendant was stopped. Boyd v. State, 300 Ga. App. 455, 685 S.E.2d 319 (2009).*

Defendant had automatic standing under state law where it was alleged he was guilty of possession in the place searched. Commonwealth v. Ware, 75 Mass. App. Ct. 220, 913 N.E.2d 869 (2009).*

Officers doing a criminal history check during a traffic stop does not make the stop unreasonable. State v. Reed, 2009 Tenn. Crim. App. LEXIS 775 (September 17, 2009).*

Trial court found that defendant’s stop was not justified because of a seat belt violation, and the officer was simply found not credible. The evidence does not preponderate against that finding. State v. Walker, 2009 Tenn. Crim. App. LEXIS 780 (September 21, 2009).*

Knock-and-talk approach veered off and officers instead went to defendant’s outbuilding, and the search was unreasonable. Defendant’s later consent was not sufficiently attenuated from the unlawful search. State v. Greene, 2009 Tenn. Crim. App. LEXIS 777 (September 22, 2009).*

A fish and game officer in California does not have the authority to conduct suspicionless inspections of a vehicle [a boat yes, a car no] for lobster taken out of season. Considering the stop as a roadblock, it was invalid because it was for general law enforcement purposes. People v. Maikhio, 180 Cal. App. 4th 1178 (4th Dept. 2010), revd People v. Maikhio, 51 Cal. 4th 1074, 253 P.3d 247, 126 Cal. Rptr. 3d 74 (2011) posted June 21, 2011:

Accordingly, “[t]here is a two-step analysis applicable to Fourth Amendment checkpoint cases. First, the court must ‘determine whether the primary purpose of the [checkpoint] was to advance “the general interest in crime control.’” [Citation.] ’If so, then the stop … is per se invalid under the Fourth Amendment.’ [Citations.] [¶] If the checkpoint is not per se invalid as a crime control device, then the court must ‘judge [the checkpoint’s] reasonableness, hence, its constitutionality, on the basis of the individual circumstances.’ [Citation.] This requires consideration of ‘the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.’ [Citations.]” (U.S. v. Fraire (9th Cir. 2009) 575 F.3d 929, 932.) Although Fraire’s two-step analysis specifically addressed vehicle checkpoints, there is no reason why the same analysis should not apply to other traffic stops of vehicles, including the stop of Maikhio’s vehicle in this case.

In the circumstances of this case, we conclude Fleet’s stop of Maikhio’s vehicle was indisputably made for normal law enforcement needs and to uncover evidence of ordinary criminal wrongdoing (i.e., a misdemeanor fishing offense) by a specific individual (i.e., Maikhio). As described in the factual and procedural section above, Fleet saw Maikhio hand-line fishing. He saw Maikhio catch something and place it in a black bag, but he could not see what Maikhio had caught. Fleet watched as Maikhio left the pier and drove away from the parking lot in his vehicle. Fleet then conducted a traffic stop of Maikhio’s vehicle on a public street because he “wanted to make sure … that [Maikhio] was in compliance with the California fishing laws and regulations.” Accordingly, the primary, if not sole, purpose of Fleet’s stop of Maikhio’s vehicle was to determine whether Maikhio had violated a fishing law (i.e., committed a misdemeanor fishing offense) and presumably to cite Maikhio if Fleet determined he had done so. That purpose was clearly to detect or uncover evidence of ordinary criminal wrongdoing and therefore promote the general purpose of crime control. Because Fleet’s stop of Maikhio’s vehicle did not serve a “special need” of government, it was per se unreasonable under the Fourth Amendment (absent the existence of reasonable suspicion that Maikhio was involved in criminal activity). (Edmond, supra, 531 U.S. at pp. 37-38, 41–42, 47; U.S. v. Fraire, supra, 575 F.3d at pp. 931–932.) “Because the primary purpose of [Fleet’s stop of Maikhio’s vehicle was to uncover evidence of ordinary criminal wrongdoing, the [stop] contravene[d] the Fourth Amendment [if Fleet had no reasonable suspicion that Maikhio was involved in criminal activity].” (Edmond, at pp. 41–42.) Like the court in Edmond, “[w]e decline to suspend the usual requirement of individualized suspicion where [a DFG warden] seek[s] to employ a [traffic stop of a specific vehicle] primarily for the ordinary enterprise of investigating crimes.” (Id. at p. 44.)

As noted a week ago here, Mapp v. Ohio is 50 years old today.

See the source of my original post: Slate.com: Mapp v. Ohio turns 50 / If a moderate Texan could love the exclusionary rule, why can’t judicial conservatives?

See also:

American Constitution Society: Chipping Fourth Amendment Away, Let’s Celebrate Mapp v. Ohio, While We Can

Politics 365: Mapp v. Ohio Turns 50: A Look at Warren Court’s Rights of Defendants

Ironically, Thursday came Davis v. United States, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011) (7-2). Justice Breyer, dissenting with Justice Ginsberg, bemoans that the exclusionary rule is moving toward the violation having to be willful to ever suppress:

Perhaps more important, the Court’s rationale for creating its new “good faith” exception threatens to undermine well-settled Fourth Amendment law. The Court correctly says that pre-Gant Eleventh Circuit precedent had held that a Gant-type search was constitutional; hence the police conduct in this case, consistent with that precedent, was “innocent.” Ante, at 10. But the Court then finds this fact sufficient to create a new “good faith” exception to the exclusionary rule. It reasons that the “sole purpose” of the exclusionary rule “is to deter future Fourth Amendment violations,” ante, at 6. The “deterrence benefits of exclusion vary with the culpability of the law enforcement conduct at issue,” ante, at 8 (internal quotation marks and brackets omitted). Those benefits are sufficient to justify exclusion where “police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights,” ibid. (internal quotation marks omitted). But those benefits do not justify exclusion where, as here, the police act with “simple, isolated negligence” or an “objectively reasonable good-faith belief that their conduct is lawful,” ibid. (internal quotation marks omitted).

If the Court means what it says, what will happen to the exclusionary rule, a rule that the Court adopted nearly a century ago for federal courts, Weeks v. United States, 232 U. S. 383, and made applicable to state courts a half century ago through the Fourteenth Amendment, Mapp v. Ohio, 367 U. S. 643? The Court has thought of that rule not as punishment for the individual officer or as reparation for the individual defendant but more generally as an effective way to secure enforcement of the Fourth Amendment’s commands. Weeks, supra, at 393 (without the exclusionary rule, the Fourth Amendment would be “of no value,” and “might as well be stricken from the Constitution”). This Court has deviated from the “suppression” norm in the name of “good faith” only a handful of times and in limited, atypical circumstances: where a magistrate has erroneously issued a warrant, United States v. Leon, 468 U. S. 897 (1984); where a database has erroneously informed police that they have a warrant, Arizona v. Evans, 514 U. S. 1 (1995), Herring v. United States, 555 U. S. 135 (2009); and where an unconstitutional statute purported to authorize the search, Illinois v. Krull, 480 U. S. 340 (1987). See Herring, supra, at 142 (“good faith” exception inaptly named).

The fact that such exceptions are few and far between is understandable. Defendants frequently move to suppress evidence on Fourth Amendment grounds. In many, perhaps most, of these instances the police, uncertain of how the Fourth Amendment applied to the particular factual circumstances they faced, will have acted in objective good faith. Yet, in a significant percentage of these instances, courts will find that the police were wrong. …

But an officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment’s bounds is no more culpable than an officer who follows erroneous “binding precedent.” Nor is an officer more culpable where circuit precedent is simply suggestive rather than “binding,” where it only describes how to treat roughly analogous instances, or where it just does not exist. Thus, if the Court means what it now says, if it would place determinative weight upon the culpability of an individual officer’s conduct, and if it would apply the exclusionary rule only where a Fourth Amendment violation was “deliberate, reckless, or grossly negligent,” then the “good faith” exception will swallow the exclusionary rule. Indeed, our broad dicta in Herring—dicta the Court repeats and expands upon today—may already be leading lower courts in this direction. See United States v. Julius, 610 F. 3d 60, 66–67 (CA2 2010) (assuming warrantless search was unconstitutional and remanding for District Court to “perform the cost/benefit analysis required by Herring” and to consider “whether the degree of police culpability in this case rose beyond mere … negligence” before ordering suppression); United States v. Master, 614 F. 3d 236, 243 (CA6 2010) (“[T]he Herring Court’s emphasis seems weighed more toward preserving evidence for use in obtaining convictions, even if illegally seized … unless the officers engage in ‘deliberate, reckless, or grossly negligent conduct’” (quoting Herring, supra, at 144)). Today’s decision will doubtless accelerate this trend.

Any such change (which may already be underway) would affect not “an exceedingly small set of cases,” ante, at 18, but a very large number of cases, potentially many thousands each year. See Valdes, supra, at 1728. And since the exclusionary rule is often the only sanction available for a Fourth Amendment violation, the Fourth Amendment would no longer protect ordinary Americans from “unreasonable searches and seizures.” See Wolf v. Colorado, 338 U. S. 25, 41 (1949) (Murphy, J., dissenting) (overruled by Mapp v. Ohio, 367 U. S. 643 (1961)) (In many circumstances, “there is but one alternative to the rule of exclusion. That is no sanction at all”); Herring, supra, at 152 (GINSBURG, J., dissenting) (the exclusionary rule is “an essential auxiliary” to the Fourth Amendment). It would become a watered-down Fourth Amendment, offering its protection against only those searches and seizures that are egregiously unreasonable.

Entry into a parked car at 2:44 am with engine running and driver unresponsive was justified by emergency exception. United States v. Coleman, 2011 U.S. Dist. LEXIS 71272 (D. N.J. July 1, 2011).

A person who entered the United States illegally is not a part of “the people” entitled to claim Second [or Fourth] Amendment protection. United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011), revised June 29, 2011.*

Armed officers came with a vest with “POLICE” on it for a knock-and-talk. Defendant invited them in. The court finds there was no threat to get a search warrant if defendant did not consent. United States v. Rodriguez, 2011 U.S. Dist. LEXIS 70605 (S.D. Fla. June 29, 2011).*