NYT Op Ed: Free to Search and Seize by David K. Shipler:

THIS spring was a rough season for the Fourth Amendment. The Obama administration petitioned the Supreme Court to allow GPS tracking of vehicles without judicial permission. The Supreme Court ruled that the police could break into a house without a search warrant if, after knocking and announcing themselves, they heard what sounded like evidence being destroyed. Then it refused to see a Fourth Amendment violation where a citizen was jailed for 16 days on the false pretext that he was being held as a material witness to a crime.

In addition, Congress renewed Patriot Act provisions on enhanced surveillance powers until 2015, and the F.B.I. expanded agents’ authority to comb databases, follow people and rummage through their trash even if they are not suspected of a crime.

None of these are landmark decisions. But together they further erode the privilege of privacy that was championed by Congress and the courts in the mid-to-late-20th century, when the Fourth Amendment’s warrant requirement was applied to the states, unconstitutionally seized evidence was ruled inadmissible in state trials, and privacy laws were enacted following revelations in the 1970s of domestic spying on antiwar and civil rights groups.

Remember what the Fourth Amendment protects? No? Just as well. By Alex Kozinski and Stephanie Grace on Axisoflogic.com:

“We are gathered here today to mourn the loss of a dear friend, the Fourth Amendment. Born on the freedom-loving soil of early America, the Fourth Amendment will be remembered as the bulwark of the liberty we once called privacy. For ye, we mourn.”

As you can see, we’re working on a eulogy for the Fourth Amendment, the part of the Constitution guarding against “unreasonable searches and seizures” — in effect, a privacy provision.

When did the Fourth Amendment die, you ask?

Recently, but it’s been sick for a while.

So why haven’t you heard about it?

Because you’re the murderer. We all are. Our weapon of choice? Most recently, the smartphone, which, with our collective blessing, allows law enforcement to monitor our real-time geographic location. Although a bill recently proposed by Sen. Ron Wyden, D-Ore., would require police to obtain a warrant before turning our cellphones into tracking devices, such legislation may come too late to save the Fourth Amendment from this fatal blow.

Defense counsel was not ineffective for not raising Gant 13 months before it was decided [although the court doesn’t mention that cert was granted a month before his guilty plea]. Tinoco v. United States, 2011 U.S. Dist. LEXIS 54741 (N.D. Tex. April 14, 2011).*

The search warrant did not have to limit the search to only the basement of the house. The probable cause defines scope, and the search was proper. His claim of invalid consent depended on the warrant being bad, but it wasn’t. United States v. Musto, 2011 U.S. Dist. LEXIS 55191 (M.D. Fla. May 24, 2011).*

The officers were credible, and the court finds that defendant consented to a search of his cell phone. United States v. Phillips, 2011 U.S. Dist. LEXIS 54326 (S.D. Fla. May 5, 2011).*

SCOTUS decides Camreta v. Greene is moot. The case “promised” to decide whether there was a privacy interest in a child at school being interrogated. The Court does reiterate that § 1983 cases could [not should] be decided on the merits before turning to qualified immunity so the constitutional claims will be decided for the future [not something many courts care to do; after all, it is a way of protecting government officials from lawsuits]. Here, however, the case was moot. From the Syllabus:

To begin with the nature of these suits: Under § 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, a plaintiff may seek money damages from government officials who have violated her constitutional or statutory rights. But if those officials are entitled to qualified immunity, a court can dismiss the damages claim without ever deciding its merits—and so the qualified immunity situation threatens to leave standards of official conduct permanently in limbo. To prevent that problem, this Court has permitted lower courts to determine whether a right exists before examining whether it was clearly established. See, e.g., Pearson v. Callahan, 555 U. S. 223, 237. Here, the Ninth Circuit followed exactly this two-step process so that it could settle a question of constitutional law and thereby guide the future conduct of officials.

Given its purpose and effect, such a decision is reviewable in this Court at an immunized official’s behest. If the Court’s usual prevailing party rule applied, the official would either have to acquiesce in a ruling he had no opportunity to contest in this Court, or defy the lower court’s view, adhere to what has been declared an illegal practice, and invite further law suits and possible punitive damages. Id., at 240–241. And applying this Court’s usual bar on review would undermine the purpose of the two-step process, “which is to clarify constitutional rights without undue delay.” Bunting v. Mellen, 541 U. S. 1019, 1024 (SCALIA, J., dissenting from denial of certiorari). Just as that purpose may justify an appellate court in reaching beyond an immunity defense to decide a constitutional issue, so too may it support this Court in reviewing the correctness of the lower court’s decision. This holding is limited in two respects. First, it addresses only this Court’s authority to review cases in this procedural posture. The Court need not decide if an appellate court can also entertain an appeal from a party who has prevailed on immunity grounds. Second, the holding concerns only what the Court may review, not what the Court actually will choose to review. Going forward, the Court will consider prevailing parties’ petitions one by one in accord with its usual standards for granting certiorari. Pp. 7–14.

2. A separate jurisdictional problem requires the Court to dismiss this case at the threshold: The case is moot. In a dispute of this kind,both the plaintiff and the defendant ordinarily retain a stake in the outcome. That is true of Camreta, who remains employed as a child protective services worker, and so has an interest in challenging the Ninth Circuit’s ruling requiring him to obtain a warrant before conducting an in-school interview. But S. G. can no longer claim the plaintiff’s usual stake in preserving the court’s holding because she no longer needs protection from the challenged practice. She has moved to Florida and is only months away from her 18th birthday and, presumably, from her high school graduation. When “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” there is no live controversy to review. United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203.

When a civil suit becomes moot pending appeal, this Court has authority to “direct the entry of such appropriate judgment, decree, or order, or require such further proceedings … as may be just under the circumstances.” 28 U. S. C. § 2106. The Court’s “established” practice is to vacate the judgment below, see, e.g., United States v. Munsingwear, Inc., 340 U. S. 36, 39, to ensure that “those who have been prevented from obtaining the review to which they are entitled [are] not … treated as if there had been a review,” ibid. The point of vacatur is to prevent an unreviewable decision “from spawning any legal consequences.” Id., at 40–41. A constitutional ruling in a qualified immunity case is a legally consequential decision. When happenstance prevents this Court’s review of that ruling, the normal rule should apply: Vacatur rightly “strips the decision below of its binding effect,” Deakins v. Monaghan, 484 U. S. 193, 200, and clears “the path for future relitigation,” Munsingwear, 340 U. S., at 40. Because mootness has frustrated Camreta’s ability to challenge the Ninth Circuit’s ruling that he must obtain a warrant before interviewing a suspected child abuse victim at school, that part of the Ninth Circuit’s decision must be vacated. Pp. 14–18.

Why would four members of the Court decide to take a case that they should have seen was likely going to become moot? This is the second time this Term they have dodged a case: Remember Tolentino v. New York? Cert dismissed as improvidently granted.

Every cert grant in a Fourth Amendment case by the Roberts Court creates serious risk of damage to the Fourth Amendment and individual privacy in America. Herring v. United States‘s gutting of the exclusionary rule is Exhibit 1. It takes four votes for a cert grant, and the conservative bloc [the Death STAR*] seems willing to do anything to advance the power of government over the citizen.

It is just bad form to take a case and then dodge it. This tells me that their cert grants are slanted to aid the government. Maybe I’m just overly cynical, but that’s what I feel in my heart of hearts.

__________

* Scalia, Thomas, Alito, Roberts.

SCOTUS decides Ashcroft v. al-Kidd, 2011 U.S. LEXIS 4021 (May 31, 2011), that the former Attorney General has qualified immunity for an arrest of a material witness admittedly with probable cause, but for an alleged improper motive, ending just as I expected. The syllabus:

Respondent al-Kidd alleges that, after the September 11th terrorist attacks, then-Attorney General Ashcroft authorized federal officials to detain terrorism suspects using the federal material-witness statute, 18 U. S. C. § 3144. He claims that this pretextual detention policy led to his material-witness arrest as he was boarding a plane to Saudi Arabia. To secure the warrant, federal officials had told a Magistrate Judge that information “crucial” to Sami Omar al-Hussayen’s prosecution would be lost if al-Kidd boarded his flight. Prosecutors never called al-Kidd as a witness, and (as he alleges)never meant to do so. Al-Kidd filed suit pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, challenging the constitutionality of Ashcroft’s alleged policy. The District Court denied Ashcroft’s motion to dismiss on absolute and qualified immunity grounds. The Ninth Circuit affirmed, holding that the Fourth Amendment prohibits pretextual arrests absent probable cause of criminal wrongdoing, and that Ashcroft could not claim qualified or absolute immunity.

Held:

1. The objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive. Pp. 3–9.

(a) Qualified immunity shields a government official from money damages unless (1) the official violated a statutory or constitutional right, and (2) that right was “clearly established” at the time of the challenged conduct. Harlow v. Fitzgerald, 457 U. S. 800, 818. Where, as here, a court considers both prongs of this inquiry, this Court has the discretion to correct the lower court’s errors at each step. P. 3.

(b) Whether a detention is reasonable under the Fourth Amendment “is predominantly an objective inquiry.” Indianapolis v. Edmond, 531 U. S. 32, 47. Courts ask whether “the circumstances, viewed objectively, justify [the challenged] action.” Scott v. United States, 436 U. S. 128, 138. Except for cases that involve special-needs, e.g., Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 653, or administrative searches, e.g., Michigan v. Clifford, 464 U. S. 287, 294, this Court has almost uniformly rejected invitations to probe subjective intent. The Court of Appeals was mistaken in believing that Edmond established that “ ‘programmatic purpose’ is relevant to Fourth Amendment analysis of programs of seizures without probable cause.” 580 F. 3d 949, 968. It was not the absence of probable cause that triggered Edmond’s invalidating-purpose inquiry, but the checkpoints’ failure to be based on “individualized suspicion.” 531 U. S., at 47. Here a neutral Magistrate Judge issued a warrant authorizing al-Kidd’s arrest, and the affidavit accompanying the warrant application gave individualized reasons to believe that he was a material witness who would soon disappear. A warrant based on individualized suspicion grants more protection than existed in most of this Court’s cases eschewing inquiries into intent, e.g., Whren v. United States, 517 U. S. 806, 813, and Terry v. Ohio, 392 U. S. 1, 21–22. Al-Kidd’s contrary, narrow reading of those cases is rejected. Because he concedes that individualized suspicion supported the issuance of the material-witness arrest warrant; and does not assert that his arrest would have been unconstitutional absent the alleged pretext; there is no Fourth Amendment violation here. Pp. 3–9.

2. Ashcroft did not violate clearly established law and thus is entitled to qualified immunity. A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, “[t]he contours of [a] right [are] sufficiently clear” that every “reasonable official would have understood that what he is doing violates that right.” Anderson v. Creighton, 483 U. S. 635, 640. Here, the asserted constitutional right falls far short of that threshold. At the time of al-Kidd’s arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional. The Ninth Circuit’s reliance on a District Court’s footnoted dictum, irrelevant cases from this Court, and the Fourth Amendment’s broad purposes and history is rejected. Because Ashcroft did not violate clearly established law, the question whether he enjoys absolute immunity need not be ad-dressed. Pp. 9–12.

580 F. 3d 949, reversed and remanded.

Do GPS Tracking Devices Violate the Fourth Amendment? by Laurie L. Levenson in The National Law Journal, June 6, 2011:

Technology continues to advance, but the law cannot always keep up with it. One of the biggest areas of controversy involves tracking devices, such as Global Positioning System and cell phone locators, to conduct surveillance in criminal investigations. While many courts have given their blessing to these devices, others are troubled and believe that such surveillance violates privacy rights and the Fourth Amendment. Now it appears that the issue may be headed to the U.S. Supreme Court. On April 15, acting Solicitor General Neal Katyal petitioned the Supreme Court for review of U.S. v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), petition sub nom, U.S. v. Jones, No. 1259 (April 15, 2011), a landmark decision striking down the warrantless use of GPS devices to conduct round-the-clock surveillance of suspects’ vehicles.

Supreme Court Ruling on Searches May Extend to Mobile Tech by Joshua A. Engel in Law Technology News, June 17, 2011:

The Supreme Court on Thursday held that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule — even when the court later overrules the precedent. The case is Davis v. United States.

This case involved a major shift in the law about when police could search a vehicle after the arrest of the driver. In New York v. Belton, 453 U. S. 454 (1981), the Court permitted the police to search the passenger compartment of an automobile incident to arrest of a recent occupants, regardless of whether the arrestee was within reaching distance of the vehicle at the time of the arrest.

. . .

This opinion likely has significant impact in areas — like searches of emerging technology — where the rules are undetermined or the courts have issued conflicting opinions. For example, I described conflicting opinions about when the police can search a cell phone incident to an arrest here and here. In these areas, even if a search of an electronic device turns out to be unconstitutional, prosecutors will still be able to use the evidence so long as the police aren’t violating Fourth Amendment rights in a deliberate, reckless, or grossly negligent manner.

Read more from Joshua A. Engel on EDD Update, an LTN blog devoted to e-discovery news and analysis.

The FBI Domestic Investigations and Operations Guide (pdf) has been added to the sidebar. It has several sections on searches, National Security Letters, and general “acknowledgements” of civil liberties.

Also added is the DEA Agents Manual (download).

On Isureveille: To the Point: Welfare drug testing bill warrants Fourth Amendment override by Austin Casey, about a Louisiana bill moving out of committee to require drug testing of welfare recipients.

On Huffington Post: Don’t Tread on My Cloud:

When Apple announced its iCloud service, commentators spilled much ink wondering if the data of users would be safe from hackers. But an equally important angle to the story was ignored: whether the data in the cloud has enough legal protection to keep it from the prying eyes of the government.

A[n apparent] family lawyer was ordered to appear at a federal court suppression hearing, and his state law objections as to privilege to his testifying were overruled. United States v. Jeremias, 2011 U.S. Dist. LEXIS 63989 (W.D. N.C. June 15, 2011).*

Based on all the evidence, the stop of defendant, a black male running down the street, was justified because there was substantial evidence to believe he was involved in a robbery that police quickly converged on. United States v. Harris, 2011 U.S. Dist. LEXIS 64171 (D. Minn. April 8, 2011).*

A search warrant issued after a flyover of a marijuana grow that did not specify open fields on the property was not invalid. And, if it was in open fields on the property, it could be searched anyway. United States v. Burge, 2011 U.S. Dist. LEXIS 63802 (C.D. Ill. June 16, 2011).*

“Any challenge to this court’s denial of the suppression motion would have proved futile; the failure to further pursue the argument did not prejudice Petitioner. Counsel’s decision not to raise a meritless claim does not constitute ineffective assistance.” Angulo-Hernandez v. United States, 2011 U.S. Dist. LEXIS 64133 (D. P.R. June 16, 2011).*

Officer lacked any reasonable belief that a 14 year old at the house, who was a mere visitor, had apparent authority to consent to an entry and search. Limon v. State, 314 S.W.3d 694 (Tex. App. Corpus Christi – Edinburg 2010), revd Limon v. State, 2011 Tex. Crim. App. LEXIS 830 (June 15, 2011) (dissent) (posted June 20, 2011):

First, mere presence at a residence is insufficient to support a reasonable belief that the person has authority to consent to a search. The State must present more evidence than mere presence to support a finding of apparent authority. See, e.g., United States v. Cos, 498 F.3d 1115, 1129 (10th Cir. 2007); Riordan v. State, 905 S.W.2d 765, 772 (Tex. App.-Austin 1995, no pet.) (holding that mere presence and relationship to defendant does not justify conclusion that person has apparent authority). A.S.’s mere act of answering the door in the middle of the night did not, by itself, justify Officer Perez’s conclusion that A.S. had authority to consent to entry into the home, and more specifically, into Limon’s bedroom, particularly given that Officer Perez knew that an adult owned and resided on the premises.

Second, a child is generally incapable of waiving his own rights without any instruction or guidance, and is even less fit to surrender the rights of another. … More importantly, however, a child who may have been awakened from his or her slumber at 2:00 a.m. is unlikely to be thinking clearly or capable of making a reasoned decision whether to admit officers into the home. See Matt McCaughey, And a Child Shall Lead Them: The Validity of Children’s Consent to Warrantless Searches of the Family Home, 34 U. LOUISVILLE J. FAM. L. 747, 749 (1996) (“[C]hildren are far less likely to understand the consequences of their consent, and thus, some may not have the capacity to consent voluntarily to a warrantless search.”). Officer Perez did not testify that he advised A.S. of the consequences of his consent to search or that A.S. understood those consequences and made a reasoned decision.

These circumstances created an ambiguity that Officer Perez was obligated to resolve before entering the home, requiring him to ask further questions, such as whether the child actually lived at the home, whether the child’s parents were available, whether the child understood that he did not have to consent, or whether the child wished to consult an adult on the premises. … Had Officer Perez simply asked A.S.’s name, he would have realized that A.S. did not share the same last name as Limon, Sr. Upon that discovery, Officer Perez should have asked to speak to Limon, Sr., instead of relying on a thirteen – or fourteen-year-old’s consent to enter. The State did not meet its burden to present evidence demonstrating a reasonable belief that A.S. had authority to allow the officers to enter.

In a rare judicial conclusion, and a reaffirmation of the risk of a “judge as rubber stamp,” a state search warrant in a multi-hundred thousand pill MDMA search was found based on mere conclusions of the officer and was suppressed for a failure to show probable cause. United States v. Underwood, 2011 U.S. Dist. LEXIS 63531 (C.D. Cal. June 16, 2011). I’ve raised this a few times myself, because police officers often just put conclusions in their affidavits. The conclusions here:

(1) “Underwood is a courier for a multi- hundred thousand pill MDMA drug trafficking organization”;

(2) “On April 14, 2010, Drug Enforcement Administration (“DEA”) Special Agents and Beverly Hills Police Department (“BHPD”) Detectives observed Underwood deliver two wooden crates to known co-conspirators Jimmy Luong (“Luong”) and Tony Barrera (“Barrera”). Based on other seizures in this investigation, I believe the crates contained approximately 260,000 pills of MDMA”;

(3) Agent Johnson’s descriptions of “fronting” in paragraph 2 of the state affidavit; and

(4) that marijuana was observed in plain view upon a protective sweep of Underwood’s home.

The holding:

Detective Kaiser’s affidavit baldly asserts that he learned from Agent Johnson that Underwood was a courier for a multi-hundred thousand pill MDMA drug trafficking organization. The facts supporting the basis of Agent Johnson’s conclusion are not disclosed in the affidavit. In an analogous situation, probable cause is lacking when an informant’s conclusory allegations, but not the factual bases for the informant’s knowledge, are offered to support probable cause. See, e.g., Aguilar v. Texas, 378 U.S. 108, 114 (1964) (“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were … [o]therwise the inferences from the facts which lead to the complaint will be drawn not by a neutral and detached magistrate … but instead … by an unidentified informant.”) (internal citations and quotations omitted).

Although the parties do not discuss this issue, the Court acknowledges that other law enforcement agents’ observations are assumed reliable, unlike informants’ observations, which must be supported by the affiant’s basis for concluding the statements are reliable. See Ventresca, 380 U.S. at 111 (‘Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number.”); United States v. Lapsins, 570 F.3d 758, 764 (6th Cir. 2009) (“[I]n general, another law enforcement officer is a reliable source and consequently no special showing of reliability need be made as a part of the probable cause determination.”) (quoting LaFave § 3.5(a)) (internal quotation marks and corrections omitted). However, though observations of other police officers may be relied upon, the affiant may not simply state the bare-boned conclusions of other officers as a basis for probable cause. It is clear that if Agent Johnson, not Detective Kaiser, had made the statement “Underwood is a courier for a drug trafficking organization” in an affidavit, the statement would be conclusory. The conclusory nature of this statement is not improved because Detective Kaiser relied upon the conclusions of Agent Johnson. If an affiant could simply circumvent the requirement to include a factual basis supporting probable cause by relying on the bald conclusions of another law enforcement officer, the detached and neutral magistrate required to approve the search may as well be replaced by a rubber stamp.

A motor home is not entitled to greater Fourth Amendment protections. Instead, a motor home poses greater risks and is subject to a protective sweep in proper cases. Here, defendant’s consent justified a protective sweep and then his admission he had marijuana gave probable cause to search the vehicle. United States v. Coleman, 2011 U.S. Dist. LEXIS 62950 (D. Neb. May 20, 2011):

Likewise in [United States v. Robinson, 455 F.3d 832, 834 (8th Cir. 2006)], a de minimis intrusion beyond the scope of the traffic stop was allowed. In Robinson, the defendant was pulled over for failing to stop at a stop sign. After issuing the warning for the traffic violation, the police officer asked Robinson about an object the officer believed he saw Robinson take from his pocket and hide between the seats. Robinson argued that once the warning was issued the stop should have concluded and any further detention was an impermissible seizure. The court disagreed, noting that even if the law enforcement officer did not have reasonable suspicion to prolong the traffic stop, the brief questioning did not constitute a Fourth Amendment violation. 455 F.3d at 834. “Even if a suspicionless seizure occurred during the period from the conclusion of the traffic stop until the officers unquestionably had probable cause, it was a de minimis intrusion that did not constitute an unreasonable seizure with the meaning of the Fourth Amendment.” Id.

. . .

Moreover, even assuming as defendant argues, that the scope of a roadside search should be narrowed when the vehicle is a mobile home, unlike an automobile a mobile home can hide others who may pose a risk of harm to the officer. Officers may take “additional steps as are ‘reasonably necessary to protect their personal safety and maintain the status quo during the course of a stop.’” United States v. Thomas, 249 F.3d 725, 729 (8th Cir. 2001) (internal citations removed). Since Trooper Bauer did not know if anyone else was in the defendant’s vehicle, he was entitled to perform a protective sweep of the motor home and search areas where another individual may be hiding – including under the bed. See Thomas, 249 F.3d at 729 (upholding a protective sweep of a van when the officer could not see into a van from the outside).

On Volokh Conspiracy: New Jersey Supreme Court Will Hear Fourth Amendment Case Involving Supposed “Administrative Search” of a Family’s Back Yard after SCOTUS denied cert in March. The case is New Jersey Dep’t of Envtl. Protection v. Robert and Michelle Huber (065540) (link only good for a few days). As Volokh notes, SCOTUS cert denials mean nothing, except this one had three dissenters showing interest.

As noted earlier here, today is the 40th Anniversary of the “War on Drugs.“

From Wired.com: The text of the GPS Act:

This Act may be cited as the “Geolocational Privacy and Surveillance Act” or the “GPS Act”.

It has five sections to add to Title 18:

2601. Definitions.
2602. Interception and disclosure of geolocation information.
2603. Prohibition of use as evidence of acquired geolocation information.
2604. Emergency situation exception.
2605. Recovery of civil damages authorized.

Posted two hours ago on the website ars technica: Bipartisan bill would end government’s warrantless GPS tracking by Nate Anderson:

Under a new bill dubbed the “GPS Act,” law enforcement officials would no longer be able to obtain geolocation data from cellphones and GPS tracking devices without a warrant.

“I take the Fourth Amendment very seriously,” said Rep. Jason Chaffetz (R-UT) at a press conference announcing the bill. “The law enforcement community is going too far” by using GPS trackers without a warrant, he said. “I happen to think that’s wrong.”

Sen. Ron Wyden (D-OR), the lead Senate sponsor of the legislation, said that the US was trying to “race a technological Indy 500” with laws “out of the horse-and-buggy era.” Providing clear rules and tighter privacy protections on geolocation data should benefit everyone, including law enforcement, he said—even if some investigators don’t immediately see it that way.

Under the new bill, geolocation data obtained from devices like tablets, smartphones, and GPS trackers would be held to the same standard as a wiretap request; police can go to court, show probable cause, and obtain a warrant if they need access to such information. The current mishmash of court rulings about the legality of warrantless location tracking would be brought into uniformity, though the warrant standard would be relaxed in certain exceptional cases such as emergencies and 911 calls, among other situations.

Good publicity, yes. On Thomas.gov? Not yet.

A different perspective: essentially, that the Fourth Amendment should treat computers in a way that rejects a distinction between the physical storage medium and its contents. This is a departure from how most other writers have approached the subject: Josh Goldfoot, The Physical Computer and the Fourth Amendment, 16 Berkeley J. Crim. L. 112 (2011):

Computers can be evidence. Consequently, criminal investigators often need to seize computers and examine them. Computer forensic examination is now a common tool in all types of criminal investigations. The FBI, alone, has more than two hundred full-time computer forensic examiners. Yet, computer forensic examination poses a recurring Fourth Amendment problem. Computer storage media can reveal facts relevant to an investigation, but they can also reveal irrelevant facts that can be embarrassing or inform investigators for the first time about a new crime.

To reveal the relevant while shielding the irrelevant, most courts employ a special fact perspective—that is, a special way to characterize the operative facts. They conceive of storage media as containers of subcontainers, with each subcontainer corresponding to a directory, a file, or something smaller. From this “subcontainer perspective,” existing search and seizure law governs forensic examination in the same way it governs an officer searching a home. Each subcontainer is a separate “thing” under the Fourth Amendment. The Fourth Amendment limits an examiner’s authority to seize that subcontainer in the same way it limits an officer’s authority to seize a murder weapon from a home.

The subcontainer perspective transforms search and seizure law. Search and seizure law is heavily premised on physical facts: it governs what places officers can enter and what things they can seize, but not what information they may learn. The subcontainer perspective rejects that premise. Rejecting that premise causes search and seizure rules to cease to make sense. Some physical rules cannot be applied to information at all, others might apply in multiple contradictory ways, and others, when applied, counter-intuitively produce results that barely restrict forensic examination at all. Out of the resulting mess, many have called for departures from search and seizure law, such as requiring magistrate judges to approve how a computer will be “searched” or abolishing plain view. Far from permitting a straightforward application of old law to new facts, the subcontainer perspective leads to the invention of new rules, based on new policy choices.

Rather than use the subcontainer perspective, a better choice is to adopt a perspective, similar to one that the California Supreme Court recently used, that views storage media as physical evidence. Under this perspective, a hard drive is an object, not a place. …

In yesterday’s NYTimes: F.B.I. Agents Get Leeway to Push Privacy Bounds by Charlie Savage:

The Federal Bureau of Investigation is giving significant new powers to its roughly 14,000 agents, allowing them more leeway to search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention.

The F.B.I. soon plans to issue a new edition of its manual, called the Domestic Investigations and Operations Guide, according to an official who has worked on the draft document and several others who have been briefed on its contents. The new rules add to several measures taken over the past decade to give agents more latitude as they search for signs of criminal or terrorist activity.

The F.B.I. recently briefed several privacy advocates about the coming changes. … (link in article)