ABAJ.com: Arrested in Seattle, Computer Security Expert Creates Searchable Website of Police Dashcam Video Log by Martha Neil:

Arrested three years ago in Seattle, when a police officer apparently didn’t appreciate his “brainiac” attitude after he was questioned about swatting giant sponge golfballs from bar to bar during a pub crawl, a computer security expert has fought back bigtime.

After the obstruction case against him was dismissed, Eric Rachner pursued a public-disclosure claim against the city’s police department over its failure to provide all video camera footage of his arrest, winning a $60,000 judgment. And today he filed suit against the department again, asserting claims in his King County Superior Court complaint (PDF) for false arrest, obstruction of justice, malicious prosecution and “spoliation of video evidence,” reports the Seattle Times.

But that’s not all. Tomorrow the 35-year-old Rachner plans to activate a website that, he says, will allow arrested citizens and their attorneys to see whether there is any video from the dashboard cameras that police are supposed to activate during arrests.

The victim of a crime is a presumptively reliable “informant.” Here, her car was pipe bombed, and she reported that defendant threatened to do it. With other factors, there was probable cause for a search of defendant’s property, including a prior for arson and the victim seeing propane cylinders like the ones used in the bombing in defendant’s possession. United States v. Garcia, 2011 U.S. Dist. LEXIS 113748 (E.D. Cal. October 3, 2011).*

The evolving nature of the situation allowed this detention to last three hours. “Defendant was first detained during a protective sweep for officer safety, he was then detained for questioning with respect to the stolen property in the apartment, and finally he was detained specifically to be questioned about his alleged ownership of a gun found during the search.” United States v. Temple, 2010 U.S. Dist. LEXIS 143831 (D. Utah September 30, 2010).*

In defendant’s 2255, he argued the after decided case of Gant which did not apply anyway because of his consent. Rosario v. United States, 2011 U.S. Dist. LEXIS 113608 (W.D. Mo. October 3, 2011).*

On AOL TV: Detroit Cop Charged in Child’s Death During Raid Filmed for ‘The First 48’, by Catherine Lawson:

A Detroit police officer is facing charges stemming from the shooting death of a child during a raid being filmed for A&E reality show ‘The First 48.’

The AP reports that Joseph Weekley, a member of the city’s Special Response Team, was indicted Tuesday on involuntary manslaughter and careless and reckless discharge of a firearm causing the death of seven year-old Aiyana Stanley-Jones.

The TV show’s principal photographer, Allison Howard, was also indicted on perjury and obstruction of justice charges. She and Weekley have both pleaded not guilty.

Cato@Liberty: Will GPS Tracking Render the Fourth Amendment Quaint? posted by Jim Harper:

If the government put a GPS monitor on your car and used it to track every vehicular movement of yours for four weeks, do you think that would violate your Fourth Amendment rights? The government would like to be able to do that kind of thing without getting a warrant, and the Supreme Court will soon decide whether it can.

On November 8th, the Court will hear oral argument in U.S. v. Jones. Yours truly was the lead author of Cato’s amicus brief in the case, which may have a significant effect on how Fourth Amendment law intersects with new information technologies for decades to come.

Wired.com: GPS Inventor Urges Supreme Court to Reject ‘Automated,’ Warrantless Surveillance by David Kravets:

The principal inventor of the Global Positioning System is asking the U.S. Supreme Court to renounce the Obama administration’s position that it may affix GPS devices to vehicles and track their every move without a court warrant.

Roger L. Easton, awarded the National Medal of Technology in 2006, joined the Center for Democracy & Technology, the Electronic Frontier Foundation and other academics in a friend-of-the-court brief lodged Monday in one of the biggest Fourth Amendment cases in a decade — one weighing the collision of privacy, technology and the Constitution. The justices are scheduled to argue the case Nov. 9.

Easton, now 90 and the principal inventor and developer of the Timation Satellite Navigation System at the Naval Research Laboratory more than five decades ago, and the others are telling the high court that its precedent on the topic is outdated, and the government’s reliance on it should be rejected.

Warrantless GPS tracking violates the Fourth Amendment, deciding the case despite the fact the state and U.S. Supreme Court have the issue before them. State v. Sullivan, 2011 Ohio 4967, 2011 Ohio App. LEXIS 4096 (5th Dist. September 23, 2011):

We note that these issues are presently before the Ohio Supreme Court in the case of State v. Johnson, 190 Ohio App.3d 750, 944 N.E.2d 270, 2010 Ohio 5808, appeal allowed 128 Ohio St.3d 1425, 943 N.E.2d 572, 2011 Ohio 1049 (Table). We further note that the United States Supreme Court has granted certiorari to review the Fourth Amendment implications in the attachment and monitoring of a GPS tracking device. See, U.S. v. Maynard (D.C.Cir.2010), 615 F.3d 544, 392 U.S. App. D.C. 291, cert granted U.S. v. Jones, 131 S. Ct. 3064, 2011 WL 1456728, 79 USLW 3610, 79 USLW 3718, 79 USLW 3727 (U.S. Jun 27, 2011) (10A760).

Maybe, just maybe, this court wants SCOTUS to know what it thinks on this issue.

Today was the day the amicus briefs for the Respondent Jones in United States v. Jones (you remember, the GPS case?) set for argument November 8th. A couple are online. Look for the rest later today or tomorrow on ScotusBlog.

Via NACDL, I received six today, but I can’t post them.

Defendant lived on Edwards Air Force Base, and military police officers went to his house to check on his kids when they didn’t show up on a train for their mom to pick up. They found he was in the Phillippines, and left a note that a friend was taking care of the kids. They noticed 12 computers in the house, and it was in general disarray. They asked for consent to seize and search the computers, which the friend gave. Defendant found out about it and revoked consent before the search could occur. The Colonel in charge of the base authorized a military search warrant, and a civilian judge did too. While the issue was not super clear, granting Gates-deference to the Colonel, the military search warrant issuing authority, the search warrant was issued on probable cause. [The court also suggests in dicta that there was implied consent from being on a military base, but this paragraph is meaningless and wrong because case law is absolutely clear that a service member has a reasonable expectation of privacy in living quarters, especially a house.] United States v. Krupa, 633 F.3d 1148 (9th Cir. 2011).*

Officers who did not immediately release plaintiff who tested .034 on a BAC test were entitled to qualified immunity. It is not clearly established that the police had to immediately release him. Festa v. Santa Rosa County, 413 Fed. Appx. 182 (11th Cir. 2011).*

Technology and the Fourth Amendment: A Look at Recent and Upcoming Cases by Ben Thompson, J.D. Candidate in American Criminal Law Review:

It is no secret that technological development and innovation has been accelerating in recent decades at a dizzying pace. As a result, courts increasingly have applied the Fourth Amendment to circumstances involving new technologies that were barely anticipated ten years ago and completely unknown in 1791. This post briefly summarizes some upcoming cases and recent decisions involving the Fourth Amendment and technological change. These cases force the courts to strike a difficult balance between promoting the public good of efficient and effective law enforcement and protecting individuals from unreasonable infringements on their privacy.

If you’re a criminal defense lawyer and you don’t know about Jones, you’re living in a cave.

FL1 declines to follow Ohio’s Smith case and holds that a cell phone can be the subject of a search incident. The case surveys many cases on both sides of the issue. Smallwood v. State, Smallwood v. State, 61 So. 3d 448 (Fla. 1st DCA 2011):

While Chimel, Robinson and Belton permitted the search and inspection of items within the arrestee’s reach, including containers, none of these cases required an item to be a “container,” as opposed to some other type of item, in order to be searched upon arrest. Thus, whether or not a cell phone is properly characterized as a traditional “container” is irrelevant to whether or not it is searchable upon arrest. The Supreme Court has clearly and repeatedly found that anything found on an arrestee or within an arrestee’s immediate control may be searched and inspected upon arrest. There is nothing in the language of any of these cases that would permit this court to find an exception for cell phones. Therefore, we reject the reasoning of the Ohio supreme court which found cell phones were not searchable incident to arrest because they were not traditional “containers.” Smith, 124 Ohio St. 3d 163, 2009 Ohio 6426, 920 N.E.2d 949.

The Eighth Circuit holds that a cell phone is a “computer” for identity fraud and U.S. Sentencing Guidelines enhancement purposes, adopting the district court’s findings and the government’s argument. United States v. Kramer, 631 F.3d 900 (8th Cir. 2011):

We acknowledge that a “basic” cellular phone might not easily fit within the colloquial definition of “computer.” We are bound, however, not by the common understanding of that word, but by the specific — if broad — definition set forth in § 1030(e)(1). Now it may be that neither the Sentencing Commission nor Congress anticipated that a cellular phone would be included in that definition. As technology continues to develop, § 1030(e)(1) may come to capture still additional devices that few industry experts, much less the Commission or Congress, could foresee. But to the extent that such a sweeping definition was unintended or is now inappropriate, it is a matter for the Commission or Congress to correct. We cannot provide relief from plain statutory text. See United States v. Mitra, 405 F.3d 492, 495 (7th Cir. 2005) (“As more devices come to have built-in intelligence, the effective scope of [§ 1030(e)(1)] grows. This might prompt Congress to amend the statute but does not authorize the judiciary to give the existing version less coverage than its language portends.”).

The government introduced the phone’s user’s manual and a printout from Motorola’s website describing the phone’s features. See JA 1-120. The government did not, however, offer any expert testimony regarding the phone’s capabilities. Although doing so might have aided our review, the materials presented to the district court were sufficient to show by a preponderance of the evidence that Kramer’s phone was an “electronic … or other high speed data processing device” that “perform[ed] logical, arithmetic, or storage functions” when Kramer used it to call and text message the victim.

Furthermore, that processor performs arithmetic, logical, and storage functions when the phone is used to place a call. The user’s manual notes that the phone “keeps lists of incoming and outgoing calls, even for calls that did not connect,” JA 61, and “displays the phone number for incoming calls in [the] phone’s external and internal displays.” JA 66. Additionally, the phone keeps track of the “Network connection time,” which is “the elapsed time from the moment [the user] connect[s] to [the] service provider’s network to the moment [the user] end[s] the call by pressing [the end key].” JA 84. This counting function alone is sufficient to support a finding that the phone is performing logical and arithmetic operations when used to place calls.

The same is true when the phone is used to send text messages. Most fundamentally, the phone stores sets of characters that are available to a user when typing a message. See JA 42, 44. As the user types, the phone keeps track of the user’s past inputs and displays the “entered text,” see JA 44, i.e., the message being composed. The user may also delete characters previously entered, either “one letter at a time” or all at once. Id. In addition, the phone allows the users to “set different primary and secondary text entry modes, and easily switch between modes as needed when [they] enter data or compose a message,” including “iTAP” mode which uses “software” to “predict[] each word” as it is entered. JA 35. These capabilities all support the district court’s finding that the phone performed arithmetic, logical, and storage functions when Kramer used it to send text messages to the victim.

[Note: So, how can the government now argue that a cell phone seized in a search incident is not a computer, too? When is a cell phone a mere storage device and not a computer? Only when the government wants it to be not a computer, apparently.]

In a P2P search of a computer left online and open, the officer found files with names and hash values the same as known child pornography. That is probable cause. In addition, there is no reasonable expectation of privacy in a computer left on for a P2P connection because the owner left it online to be viewed by others. United States v. Oliverius, 2011 U.S. Dist. LEXIS 110783 (D. Neb. August 5, 2011):

Based on his experience and training, Investigator Weinmaster’s affidavit explains that SHA1 values are 99.9999% reliable in identifying illegal pornographic images, and therefore the SHA1 assigned to an image is highly accurate and useful to law enforcement when investigating child pornography. See, e.g., U.S. v. Finley, 612 F.3d 998, 1000 n. 3 (8th Cir. 2010) (“The SHA is a mathematical algorithm that allows for unique identification of digital images and videos. SHA values are, in essence, unique digital fingerprints or signatures.”). The warrant application lists the names of four suspect images which were available for sharing from the computer at IP address 76.84.249.75, and this IP address was identified to a person located at defendant’s residence. The names of the four listed images were highly indicative of child pornography. See U.S. v. Stults, 575 F.3d 834, 838 (8th Cir. 2009) (“PTHC” stands for “preteen hard core,” a term associated with images of child pornography); U.S. v. Buesing, 615 F.3d 971, 973 (8th Cir. 2010) (search terms, such as “Lolita,” “pthc” (“preteen hardcore”), and “preteen,” were used by the officer to locate sources of pictures and movies available through P2P sharing and depicting pornographic images of girls under the age of 18). In addition, the warrant application states that after cross-referencing the SHA1 signatures available from IP address 76.84.249.75 with those in the SHA1 database, four files were identified as depicting child pornography. The warrant application listed, by SHA1 signature, these four specific files and for each of these files, provided a description of the sex acts involving children depicted in the file.

Based on the information in the warrant application, it is unclear whether Investigator Weinmaster looked at the actual content of files retrieved from the defendant’s computer to determine whether they depicted child pornography. However, contrary to the defendant’s argument, even absent looking at the files within the defendant’s computer and available for sharing from IP address 76.84.249.75, based on the totality of information presented in the warrant application, there was a fair probability that evidence of a child pornography crime would be found by searching the residence of the account holder for IP address 76.84.249.75. Specifically, law enforcement officers traced IP address 76.84.249.75 to an account holder at the defendant’s residence; from that IP address, officers located P2P shared files with titles highly indicative of child pornography; Investigator Weinmaster cross-referenced, by SHA1 signature, files available for sharing from IP address 76.84.249.75 with the SHA1 signatures of files known to depict child pornography; and the officer viewed four files with SHA1 signatures corresponding to those identified as containing child pornography by the SHA1 database; he confirmed the files contained graphic images of child pornography; and the application contains a graphic description of what the officer saw. Given the accuracy and reliability of SHA1 signatures and the development of a database listing of SHA1 signatures for files containing child pornography, a judge may find, in all likelihood, that a suspect’s computer contains images of child pornography even if the affiant officer has not opened and viewed the files on (and using) the defendant’s computer, and has not viewed files downloaded directly from that computer. U.S. v. Beatty, 2011 WL 2728298, 1 (3d Cir. July 14, 2011) (finding a sufficient showing of probable cause where officer did not open and view the suspect files, but explained the file retrieval process, provided the names of suspect files, and cross referenced and matched each file’s SHA1 to known child pornography files); U.S. v. Miknevich, 638 F.3d 178, 184 (3d Cir. 2011) (holding that although the investigating officer never viewed the alleged images of child pornography on the defendant’s computer, the warrant application provided sufficient probable cause where the highly descriptive names of the file contents indicated child pornography and the SHA1 values for these files matched SHA1 values of files known to contain child pornography).

Merely having a key and a right of access to one’s sister’s house does not give her brother standing to challenge search of her house. Motion denied on the papers alone. United States v. Tumbling, 2011 U.S. Dist. LEXIS 108857 (M.D. Ga. September 23, 2011):

In this case, the statements of Defendant in his Motion to Suppress give the Court no reason to find that he had any reasonable expectation of privacy in the Alder Street residence. Defendant claims that he has a key to the residence on Alder Street and that “he enters the home when [the sister] is at work and as needed.” (Doc. 30, p. 5.) However, Defendant does not allege that he ever shared ownership of the home, spent any length of time in the home, or kept any personal belongings there. Further, there is no evidence of how many people have keys to the home. Possession of a key and permission to enter the home do not suffice to provide Defendant with a reasonable expectation of privacy.

Where there is reasonable suspicion, flight becomes probable cause and hot pursuit. “The Third Circuit’s holding in United States v. Laville makes clear that Anderson’s failure to accede to the officers’ commands and subsequent flight, after the officers had reasonable suspicion to conduct a Terry stop, gave them the probable cause required to satisfy the first prong of the exigent circumstances exception. See Laville, 480 F.3d at 194.” United States v. Anderson, 2011 U.S. Dist. LEXIS 108414 (D. Del. September 23, 2011).*

Demonstrably intoxicated defendant (.27% & .33%) could consent to a search. The parties litigated the level of intoxication with expert witnesses. United States v. Tellefsen, 2011 U.S. Dist. LEXIS 108495 (E.D. Wis. June 2, 2011):

As to Tellefsen’s intoxication, the parties do not dispute that Tellefsen, with a blood alcohol level between approximately .27 and .33 at the time he gave his consent at approximately 3:30 p.m., … was legally intoxicated. However, as Dr. Pankiewicz explained, there is a distinction between intoxication and impairment. … Intoxication refers to a specific measure of alcohol level, while impairment is “what that actually does to a person.” … Dr. Pankiewicz further explained: “[L]evel of intoxication does not necessarily equate with level of impairment. There’s going to be a variety as far as that individual’s capabilities, depending on their own history and their own physiologic makeup.” … Thus, for example, if an experienced and an inexperienced drinker both have a blood alcohol level of .1, the experienced drinker will perform better than the inexperienced drinker at the same level of intoxication. … Dr. Pankiewicz testified that while the blood alcohol content number gives a guideline, the real measure of function is a person’s actual demonstrated capacity. …

Here, while Tellefsen was intoxicated, exhibiting occasional slurred speech and smelled of alcohol, there was no indication of impairment or that Tellefsen did not know what he was doing. Both Sergeant Jaekl and Officer Herbst testified that they suspected Tellefsen was intoxicated; however, both testified that Tellefsen did not appear impaired. … Both officers testified that throughout their interaction with Tellefsen, he was lucid. He gave responsive answers to questions and gave detailed explanations.

On YouTube from Cato: Judge Alex Kozinski on Digital Privacy and Fourth Amendment Rights in the 21st Century:

The Hon. Alex Kozinski gave the annual B. Kenneth Simon lecture at Cato’s Constitution Day Conference on September 15, 2011. He spoke about changing cultural expectations of privacy regarding new technologies and how judicial applications of the Fourth Amendment have changed over time to reflect these expectations.

A must see.

The “fellow officer rule” permits officers to rely on email attachments from other officers in showing probable cause. United States v. Mikelic, 2011 U.S. Dist. LEXIS 106112 (D. Conn. September 19, 2011).*

When officers asked to enter, defendant stood aside, and that was implied consent to enter. No coercion or weapons were shown. United States v. Broadnax, 2011 U.S. Dist. LEXIS 105799 (E.D. Cal. September 15, 2011).*

The officer’s reasonable suspicion was based in part on knowing that there was a federal wiretap on defendant for a drug investigation, defendant’s intoxication, and unusual travel plans. United States v. Bussell, 2011 U.S. Dist. LEXIS 106207 (E.D. Tenn. August 10, 2011),* adopted 2011 U.S. Dist. LEXIS 108164 (E.D. Tenn. September 16, 2011).*

A defendant handcuffed in the back of a police car yelling to his mother not to consent, which the officers could hear and ignored, was a sufficient objection under Randolph to bypassing him to ask his mother for consent. Consent suppressed. United States v. Mass, 2011 U.S. Dist. LEXIS 108122 (D. Neb. September 16, 2011):

In this case, Mass, while handcuffed in the back of a police vehicle, was yelling at Gibson not to let the officers inside the residence. The officers heard his objections and Gibson even made light of it to Officer Gassaway. The government argues that in order to have objected to the search, Mass had to have interacted with police directly, to come forward and say “no you cannot search,” which he did not do. The court rejects that argument. “[T]he standard for measuring the scope of a person’s consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” McMullin, 576 F.3d at 815. The court “examine[s] the totality of the circumstances, which includes the language of a person’s consent and his actions during the officers’ search.” Id. (alteration added). While in the present case Mass did not interact with the officers directly, an objectively reasonable person would understand Mass yelling at his mother not to let the officers inside to mean Mass is objecting to the search. Mass was physically present, expressly refusing consent. The court therefore finds the search to be a violation of the Fourth Amendment, and the contents of the search should be suppressed.

Defendant sold drugs over a mile from his home, and there was no evidence that there was a connection to his house, other than an officer’s expert opinion that drug dealers commonly keep their drugs in their house. Without more, there was no probable cause for issuance of the warrant. Nevertheless, the search warrant would not be suppressed under Leon’s good faith exception because of a split in authority that this was not enough. United States v. Kortright, 2011 U.S. Dist. LEXIS 107386 (S.D. N.Y. September 13, 2011):

The Court holds that (1) stale information (one year old) that Defendant dealt drugs on a handful of occasions, combined with (2) an expert opinion that drug dealers typically keep drugs in their homes, is not enough to establish probable cause to search the Apartment.

. . .

Although the court in Moran found the “good faith” exception unavailing, this Court recognizes that there is an “existing disagreement among [courts] on the sufficiency of the opinions of law enforcement agents in establishing probable cause.” United States v. Guzman, 97 cr. 786, 1998 U.S. Dist. LEXIS 1538, 1998 WL 61850, at *3 (S.D.N.Y. Feb. 13, 1998) (Scheindlin, J.); 1998 U.S. Dist. LEXIS 1538, [WL] at *4 (“[T]here exists no clear rule in this circuit governing the exclusive reliance on law enforcement agents’ expert opinions in determining probable cause.”). Because of this disagreement, a reasonably well-trained officer may not necessarily have known that this search was illegal. Leon, 468 U.S. at 923 n.23.

. . .

In sum, these decisions reveal “existing disagreement among [courts] on the sufficiency of the opinions of law enforcement agents in establishing probable cause.” Guzman, 1998 U.S. Dist. LEXIS 1538, 1998 WL 61850, at *3. The Court thus declines to suppress the seized evidence because, under the current state of the law, a reasonably well trained officer would not have known that the search was illegal. Leon, 468 U.S. at 922 n.23. Here, the magistrate judge, whose duty it was to interpret the law, issued the search warrant, and it was reasonable for the officers to rely on that determination. See Gomez, 652 F. Supp. at 464. Accordingly, Defendant’s motion to suppress evidence seized from the Apartment is denied.

So, what about the next case? Does this mean that the next case in the Southern District of New York with similar facts will not be suppressed? This case should now be notice to the NYPD that the search lacked probable cause. Is this like the “one dog bite” rule? What about other police departments? At what point is the rule universally accepted?

Standing by watching a search and not objecting is an important factor in consent on the totality [which I don’t buy at all as contrary to human experience and common sense]. United States v. Khaleel, 2011 U.S. Dist. LEXIS 106955 (N.D. Iowa September 20, 2011).*

The totality of circumstances showed consent. “Defendants ‘can, and often do, consent to a search even when it must be clear to them that incriminating evidence will be disclosed.’ United States v. Price, 599 F.2d 494, 503 (2d Cir. 1979).” United States v. Bourne, 2011 U.S. Dist. LEXIS 107530 (E.D. N.Y. September 23, 2011).*

Because the Anchorage inventory policy only permitted inventory of things in plain view, looking under a bandana in the car and finding a gun was not valid as an inventory, so the gun was suppressed. However, his arrest still would have led to his search at the jail, so the bullets found on his person were not suppressed. United States v. Vickers, 2011 U.S. Dist. LEXIS 107692 (D. Alaska September 23, 2011).*

Officers were invited into the residence on their request, and they had probable cause to arrest defendant. A co-occupant granted them consent to search. United States v. Zack, 2011 U.S. Dist. LEXIS 107509 (E.D. Wis. September 21, 2011).*

Defendant questioned the timing of the search and his arrest. “The Court is unaware of any law that dictates that a search warrant must be executed at a time that is most convenient to the owner or occupant of a premises.” United States v. Cardenas, 2010 U.S. Dist. LEXIS 143750 (N.D. Ohio September 21, 2010), R&R 2011 U.S. Dist. LEXIS 77791 (N.D. Ohio May 5, 2011):

The defendant suggests that his seizure was unnecessary because the officers deliberately delayed in executing the search warrant until he had returned from his errands. Yet, he concedes that agents had only obtained the warrant shortly before the defendant had returned, and had no legal justification to enter his premises prior to obtaining the warrant. The Court is unaware of any law that dictates that a search warrant must be executed at a time that is most convenient to the owner or occupant of a premises.

Even so, Summers expressly recognized that the government’s interest “in the orderly completion of the search” is often “facilitated” when “the occupants of premises are present.” 452 U.S. at 703. In light of the fact that the warrant allowed for execution “in the daytime 6:00 am to 10:00 pm […] on or before September 21, 2010,” officers did nothing improper by executing the warrant after the defendant returned. See generally, United States v. Cochran, 939 F.2d 337 (6th Cir. 1991) (agents executing search warrant may require occupant who has departed the premises to be searched to re-enter residence and remain there while the search is conducted); United States v. Head, 216 Fed. Appx. 543 (6th Cir. 2007) (officers properly apprehended and detained the defendant during a search of her residence after she had left).