TSA checked baggage screeners found firearms in defendant’s checked luggage which had not been declared as required by federal law. There is no reasonable expectation of privacy in luggage checked with an airline because it can be searched to prevent terrorist attacks. United States v. Esteban Alcapone Rosario, 2011 U.S. Dist. LEXIS 107576 (N.D. Ga. September 21, 2011):

The Magistrate Judge’s second conclusion regarding the search of Defendant’s suitcase in Puerto Rico is clearly correct. Given the widely-understood need to prevent terrorist attacks, airline travelers know that their checked bags are subject to routine searches such that Defendant cannot demonstrate that he had an expectation of privacy with respect to his checked suitcase. Moreover, pursuant to 49 C.F.R. § 1544.203, all checked baggage is subject to search, and all airline passengers must consent to a search of their luggage as a condition of the airline accepting it. Under Tariff Rule 190.B.1 of the Delta Domestic General Rules Tariff, available at http://www.delta.com/legal/contract_of_carriage/index.jsp, Defendant agreed that, as a condition of Delta’s accepting his baggage for transport, his baggage was subject to inspection.

This holding could have been a lot more narrow and achieved the same result; i.e., the CTX machine revealing firearms and the lack of declaration of firearms, the search of the bags was reasonable. TSA does not have general law enforcement authority to search luggage for evidence of a crime. So, how does an undeclared gun in checked baggage out of one’s hands potentially facilitate an airplane hijacking?

Note the defendant’s unfortunate middle name to go with the unfortunately overbroad holding.

WNYC: Police Commissioner Calls on NYPD to Stop Improper Marijuana Arrests:

Police Commissioner Ray Kelly has issued an internal order to the New York City Police Department commanding officers to stop arresting people for small amounts of marijuana possession, if the marijuana was never in public view. The directive comes at a time when the NYPD is taking increasing heat about alleged improper marijuana arrests.

NYTimes.com: Borough President Seeks Limits on Stop-and-Frisk:

The Manhattan borough president, Scott M. Stringer, arguing that Police Department practices are creating a “wall of distrust” between officers and minorities, plans to call this weekend for a major re-examination of the department’s stop-and-frisk policy.

Mr. Stringer plans to argue at a symposium that the spiraling use of the practice — stopping and searching people who officers believe may be armed and dangerous — is disproportionately directed at blacks and Latinos, constituting harassment and making those demographic groups less likely to assist the police in investigations. There were about 600,000 stop-and-frisk encounters in New York City last year.

The Constitution Project: Warrantless Location Tracking Threatens Fourth Amendment Says Former Law Enforcement and Legal Experts in TCP Report:

Today, The Constitution Project’s (TCP) bipartisan Liberty and Security Committee released a comprehensive policy statement condemning the warrantless use of powerful surveillance technologies, including Global Positioning System (GPS) tracking, by law enforcement officials. Committee members concluded that the prolonged use of electronic tracking technologies without a warrant violates the Fourth Amendment.

CNN.com: California bill would ban warrantless cell phone searches by Amy Gahran:

If you get arrested in California, the photos, e-mails and other personal data on your cell phone soon could be a bit safer from prying police eyes soon. A bill passed by the state legislature would require law-enforcement officers to obtain a warrant before searching the cell phone of a person placed under arrest.

If signed by the governor, the bill would override a January ruling by the California Supreme Court. According to California Sen. Mark Leno, who sponsored the legislation, this ruling had “legalized the warrantless search of cell phones during an arrest, regardless of whether the information on the phone is relevant to the arrest or if criminal charges are ever filed.”

The new California law unanimously passed in the state Assembly. Gov. Jerry Brown has until October 9 to sign it into law, according to a spokesman from the governor’s office.

The government did not commit a Franks violation by not disclosing that ICE conducted an on-site computer examination that revealed no child pornography. The FBI obtained a valid separate search warrant for the computers for a complete forensic investigation not knowing of the ICE examination. United States v. McKerlie, 2011 U.S. Dist. LEXIS 106091 (D. Ariz. July 7, 2011):

The Defendant alleges that Judge Pyle would not have issued the search warrant knowing that ICE’s on-site examination of the computer in April 2009 yielded no evidence of children pornography. The FBI affidavit, however, provided a sufficient explanation as to why an on-site examination such as the one conducted by ICE, could fail to locate child pornography present on a computer and the affidavit provided probable cause for a more in-depth search of the same computer. The warrant described numerous ways that child pornography is hidden on computers and the highly technical process and expertise required to detect the pornography. The affidavit explained why a detailed off-site search was often necessary to detect pornography. In one portion of the affidavit, the affiant stated: “Since computer evidence is extremely vulnerable to tampering or destruction (both from external sources or from destructive code embedded in the system as a ‘booby trap’), the controlled environment of a laboratory is essential to its complete and accurate analysis.” (Affidavit, p. 7.) In another section, the affiant described how computer experts can recover during a complete off-site forensic evaluation, deleted images, including images deleted years earlier: …

In this interesting article, albeit not about the Fourth Amendment, USA Today writes about server centers: Buildings house secret servers that keep Net humming by Judy Keen. There’s this tidbit near the end:

As more data centers are built, he says there will be more debate about legal issues: What happens if law enforcement has a warrant for a server that also contains data owned by other companies?

As storage goes off-site (the “cloud”), one can imagine search warrants for entire servers where only a tiny part contains the information used by the search warrant’s true target. What then? The Comprehensive Drug Testing search protocol debate will be revived. What ham-handed law enforcement officer isn’t going to seek seizure of the entire server because it’s easier than segregating information really needed in the search warrant papers?

Update: See F.B.I. Seizes Web Servers, Knocking Sites Offline and FBI Seizes Servers at Dallas Data Center.

Salon.com: Dennis G. Jacobs: Case study in judicial pathology by Glenn Greenwald:

The last decade has spawned a massive expansion of the domestic Surveillance State. Worse, the U.S. Government has vested itself with the virtually unchallenged ability to operate this surveillance regime in full secrecy and even beyond the reach of judicial review, which is another way of saying: above and beyond the rule of law.

Each time U.S. citizens in the post-9/11 era have accused government officials in federal court of violating the Constitution or otherwise acting illegally with how they spy on Americans, the Justice Department employs one of two secrecy weapons to convince courts they must not even rule on the legality of the domestic spying: (1) they insist the spying program is too secret to allow courts even to examine it (the Bush/Obama rendition of the “state secrets” privilege); and/or (2) because the spying is conducted in complete secrecy, nobody can say for certain that they have been subjected to it, and the DOJ thus argues that the particular individuals suing the Government — and, for that matter, everyone else in the country — lacks “standing” to challenge the legality of the spying (because nobody knows on whom we’re spying, nobody has the right to sue us for breaking the law).

WSJ: ‘Stingray’ Phone Tracker Fuels Constitutional Clash by Jennifer Valentino-Devries:

For more than a year, federal authorities pursued a man they called simply “the Hacker.” Only after using a little known cellphone-tracking device—a stingray—were they able to zero in on a California home and make the arrest.

Stingrays are designed to locate a mobile phone even when it’s not being used to make a call. The Federal Bureau of Investigation considers the devices to be so critical that it has a policy of deleting the data gathered in their use, mainly to keep suspects in the dark about their capabilities, an FBI official told The Wall Street Journal in response to inquiries.

A stingray’s role in nabbing the alleged “Hacker”—Daniel David Rigmaiden—is shaping up as a possible test of the legal standards for using these devices in investigations. The FBI says it obtains appropriate court approval to use the device.

Stingrays are one of several new technologies used by law enforcement to track people’s locations, often without a search warrant. …

Also: How ‘Stingray’ Devices Work by the same author:

Law enforcement and the military are using devices called “stingrays” to track cellphones, as described in a story in today’s Wall Street Journal. The government considers the devices sensitive information, and not much is known publicly about how they are used. But it’s possible to get a good idea of how they work based on public documents and interviews with technology experts.

The systems involve an antenna, a computer with mapping software, and a special device. The device mimics a cellphone tower and gets the phone to connect to it. It can then collect hardware numbers associated with the phone and can ping the cellphone even if the owner isn’t making a call. This can be done through walls — something that is useful in finding suspects as well as victims of crimes or accidents.

WSJ Blog: How Technology Is Testing the Fourth Amendment by Jennifer Valentino-DeVries:

The Fourth Amendment of the U.S. Constitution protects against “unreasonable searches and seizures” – but what does that mean when it comes to techniques that use technology rather than a physical search that is easy to see?

In many ways, it remains unclear. But there a few key issues that courts have been considering lately when it comes to this question.

First up: whether the activity being observed by the technology is outside or inside a person’s house. Courts have consistently ruled, for example, that the use of a GPS device to track people outside their home is not a “search” under the Fourth Amendment. The idea here is that if people are doing things in public, they don’t have much expectation of privacy. A similar argument could extend to the use of cellular signals to track people via their phones outside their home.

Inside a home, though, things are different. The first part of the Fourth Amendment gives people the right “to be secure in their persons, houses, papers and effects.”

EFF: EFF To Appeals Court: Border Is Not An “Anything Goes” Zone:

EFF has long been committed to helping international travelers protect their electronic devices and digital data at the U.S. border. We’re continuing to push for some legal limits on the government’s sweeping authority to search electronic devices at the border with an amicus brief we recently filed along with the National Association of Criminal Defense Lawyers (NACDL), urging the Ninth Circuit Court of Appeals to rehear and reverse its disturbing decision in United States v. Cotterman (pdf).

Cotterman is where two computers seized at a border crossing were moved 170 miles for analysis, and Cotterman was detained for 8 hours.

6,000 posts since this website went to this format in Feb. 2006, so probably 9,000 posts total.

Wired.com: Appeals Court OKs Challenge to Warrantless Electronic Spying by David Kravets:

A legal challenge questioning the constitutionality of a federal law authorizing warrantless electronic surveillance of Americans inched a step closer Wednesday toward resolution.

The 2nd U.S. Circuit Court of Appeals for the second time rejected the Obama administration’s contention that it should toss a lawsuit challenging the 2008 Foreign Intelligence Surveillance Amendments Act. Among other things, the government said the plaintiffs — Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation magazine, PEN American Center, Service Employees International Union and others — don’t have standing to bring a constitutional challenge because they cannot demonstrate that they were subject to the eavesdropping or suffered hardships because of it.

The opinion: Amnesty Int’l v. Clapper, 09-4112-cv (2d Cir. September 21, 2011), opinion on denial of rehearing en banc.

Wired.com: OnStar Tracks Your Car Even When You Cancel Service by David Kravets:

Navigation-and-emergency-services company OnStar is notifying its six million account holders that it will keep a complete accounting of the speed and location of OnStar-equipped vehicles, even for drivers who discontinue monthly service.

OnStar began e-mailing customers Monday about its update to the privacy policy, which grants OnStar the right to sell that GPS-derived data in an anonymized format.

Adam Denison, a spokesman for the General Motors subsidiary, said OnStar does not currently sell customer data, but it reserves that right. He said both the new and old privacy policies allow OnStar to chronicle a vehicle’s every movement and its speed, though it’s not clear where that’s stated in the old policy.

“What’s changed [is that if] you want to cancel your OnStar service, we are going to maintain a two-way connection to your vehicle unless the customer says otherwise,” Denison said in a telephone interview.

So, the government can subpoena it.

Washington Examiner on the Constitution Project: Report says warrants needed for police GPS tracking by Emily Babay:

A bipartisan group of legal experts and former law enforcement officials says limits are necessary on how police can use GPS technology to track suspects.

The Constitution Project, a D.C. think tank, on Wednesday issued a report on location-based tracking, writing that a warrant should be required for any GPS tracking that lasts longer than 24 hours. Law enforcement should also be required to obtain a warrant before placing a GPS device on a suspect’s property, such as a vehicle, the report says.

The report comes as the Supreme Court is slated this fall to take up the case of D.C. nightclub owner convicted of operating a cocaine ring. The club owner, Antoine Jones, contends that police infringed on his Fourth Amendment rights by placing a GPS device on his Jeep and monitoring his movements for a month. A federal appeals court agreed and overturned his conviction.

While the law is in flux, defense counsel was ineffective for not filing a motion to suppress GPS evidence because there is a reasonable likelihood of prevailing on that motion because of Maynard from the D.C. Circuit. State v. Jefferson, 2011 Ohio 4637, 2011 Ohio App. LEXIS 3849 (8th Dist. September 15, 2011):

[*P21] The Fourth Amendment issues surrounding GPS surveillance are not new. Both Ohio and federal courts have addressed this issue. In light of the numerous cases on this issue, especially Maynard, we conclude that not only should Jefferson’s trial counsel have filed a motion to suppress evidence obtained from the warrantless installation and use of a GPS device on his car, but there is a strong likelihood such motion would have been granted. If granted, the State would have had no evidence to link Jefferson to the crime and he would have been acquitted.

On CrimProf Blog: Call for papers: “Smartphones and the Fourth Amendment:”

The conference, at the University of the District of Columbia, David A. Clarke School of Law, will be held in spring 2012. Further info after the jump.

The University of the District of Columbia, David A. Clarke School of Law seeks submissions for its 2012 Annual Law Review Symposium. This year’s theme is “Smartphones and the Fourth Amendment: The Future of Privacy in Our Hands” The conference date is to be determined, but will be in the Spring of 2012. For more information about the conference, please visit http://www.udclawreview.com

This Symposium seeks to explore the constitutional implications of smartphone technology, focused on the Fourth Amendment to the United States Constitution. …

The Nation: When Cops Lie: A Report From Los Angeles by Jon Wiener:

Cops lie. Under oath, on the witness stand. “I saw him reach for a gun.” “I found the drugs in his pocket.” But what happens when juries refuse to believe their testimony? Do cops ever get in trouble for fabricating evidence or lying under oath? Do they ever get charged with perjury?

The Los Angeles Times in a page-one story today named three LA sheriff’s deputies who jurors in a case in Compton, California, said had told “one lie after another” under oath. They said authorities should investigate the three.

The LAT linked story: Jurors question deputies’ testimony:

When Compton jurors recently deliberated the fate of a man charged with possessing a concealed firearm, they thought the evidence was overwhelming — not that the man was guilty but that the Los Angeles County sheriff’s deputies who testified against him had lied.

Jurors said a video of the arrest and inconsistent testimony from deputies left them no choice earlier this month but to vote for acquittal. The five jurors who spoke to The Times said authorities should investigate the deputies from the sheriff’s anti-gang-unit who were involved in the case.

“These were not minor inconsistencies…. These were outright fabrications,” said juror Ted Rhodes, 28, a construction project manager. “It’ll be an injustice … if someone isn’t held accountable.”

[Univ.] Central Florida Future: Senior at UCF sues the DCF, Gov. Scott / ACLU helps student fight state drug testing by Laura Newberry:

A UCF student is the first to challenge legislation passed by the Rick Scott administration that requires welfare beneficiaries to be drug tested before they can qualify for monetary aid.

The American Civil Liberties Union is suing the Department of Children and Families on behalf of UCF senior accounting major Luis Lebron. The ACLU hopes the case will stop the law from being enforced on the grounds that it violates the Fourth Amendment.

Lebron, a Navy veteran who has sole custody of his 4-year-old son and cares for his disabled mother, was seeking welfare benefits when the legislation was passed.

ACLU gets TRO against Linn College all-student drug testing program on The Weed Blog: ACLU Blocks Missouri College From Drug Testing Students:

A Missouri technical college’s plan to force incoming students to undergo suspicionless drug testing is on hold after the ACLU of Eastern Missouri successfully sought a temporary injunction in federal court in St. Louis Wednesday. With assistance from Students for Sensible Drug Policy, the group has filed a lawsuit on behalf of six Linn State Technical College students to challenge the constitutionality of the drug tests.