On CNN.com: Warrantless cell phone searches spread to more states, by Amy Gahran:

Think about all the data — photos, videos, text messages, calendar items, apps, call log, voice mail, and e-mail — on your cell phone right now. If you’re arrested, could the police search your cell phone? And would they need a warrant?

That depends on which state you’re in.

In California, it is legal for police to search an arrestee’s cell phone without a warrant — ever since a January decision by the California Supreme Court.

California civil rights advocates are pushing back. The Electronic Frontier Foundation is supporting California Assembly Bill SB 914, which would require police in that state to get a warrant before searching an arrestee’s cell phone.

EFF also recently filed an amicus brief in the Oregon case of James Tyler Nix, a criminal suspect who was arrested and placed in a holding cell.

[I’m wrapping up a three day trial tomorrow, so I’m behind on case postings.]

Data in the “Cloud” Needs Fourth Amendment Protection by Steven Titch, on The Technology Liberation Front:

“Cloud computing” is the term for applications that are handled by third-party software and storage on the Internet, like Google Docs and QuickBooks Online, as opposed to programs like Microsoft Word and Quicken, which you load and access from your PC.

Gmail and Hotmail were early examples of cloud computing. The cloud computing concept has since expanded to include popular applications like photo editing and sharing, money management and social networking. It also takes in the increasing number of cloud-based storage services, like Dropbox, which allows you to port documents from client to client, and Carbonite, which performs near real-time back-up of data and documents on your PC.

What most Americans don’t realize is that data stored in the cloud is not protected by the Fourth Amendment the way that same data is if stored on a PC, CD or detachable hard drive in the home. My op-ed in the Washington Times today outlines this problem, and points to a new bill in Congress, S.1011, introduced last week by Sen. Patrick Leahy (D-VT), as a big step toward closing this loophole. S.1011, also cited by Berin here, extends the due process provisions against illegal wiretapping in the existing Electronic Communications Privacy Act (ECPA) to personal data stored in data centers owned and operated by third parties.

From ABAJ.com, Allegedly Frisked Attorney Sues Over NY Taxi-Search Policy:

An attorney allegedly frisked by the New York police under a policy that he says officers use to illegally search taxi passengers under the guise of checking on driver safety has filed a federal civil rights lawsuit against the city with the help of the American Civil Liberties Union.

Munir Pujara and another plaintiff, who works as a radio station manager, contend in their complaint that authorities are using the Taxi/Livery Inspection Program, in which vehicles volunteered for such searches bear a special sticker, to target minority passengers, reports the New York Post. It was filed in federal court in Manhattan.

Officers who raided a house where there was underage drinking with adults had no qualified immunity on the arrest where one young man was there with his father, and Ohio law clearly exempted that from the law. This was a mistake of law, not of fact, essentially “ignorance of the law is no excuse” [my words, not the court’s]. Pritchard v. Hamilton Twp. Bd. of Trs., 2011 U.S. App. LEXIS 10597, 2011 FED App. 0355N (6th Cir. May 25, 2011) (unpublished)*:

In a line of cases, our Court has addressed a somewhat analogous situation, whether an officer has probable cause to arrest an individual who may have an affirmative justification for a suspected criminal act. See Fridley, 291 F.3d at 872; Painter v. Robertson, 185 F.3d 557 (6th Cir. 1999); Estate of Dietrich v. Burrows, 167 F.3d 1007 (6th Cir. 1999). In both Dietrich and Painter, the arrestee was charged with carrying a concealed weapon despite the presence of a statute that provided that an individual engaged in a business activity that is particularly susceptible to criminal attack has an affirmative defense to the charge. Painter, 185 F.3d at 564-65; Dietrich, 167 F.3d at 1010-11. In both cases we denied qualified immunity, holding that the arresting police officers lacked probable cause because the officers were aware of sufficient facts and circumstances to establish that the arrestees had a statutorily legitimated affirmative justification for the suspected criminal act at the time of the arrest. Painter, 185 F.3d at 571; Dietrich, 167 F.3d at 1012.

A controlled buy three days ago was found to be stale in issuance of a search warrant when there were no facts suggesting that drugs would still be on the premises at the time the warrant was issued. State v. Archibald, 334 S.W.3d 212 (Tenn. Crim. App. 2010):

Upon de novo review, we conclude that the trial court did not err in granting the Defendant’s motion to suppress. “It is necessary for a finding of probable cause that the time interval between the alleged criminal activity and the issuance of a warrant not be too great.” State v. Baron, 659 S.W.2d 811, 814 (Tenn. Crim. App. 1983). “When illegal activity is ongoing, courts have generally held that the affidavit is less likely to become ‘stale’ with the passage of time.” State v. Thomas, 818 S.W.2d 350, 357 (Tenn. Crim. App. 1991). Although the affidavit in this case contained information establishing a nexus between the Defendant’s apartment and criminal activity, it contained no information tending to establish how long that nexus would persist. It did not, for instance, contain any facts supporting an inference that the person who sold drugs to the CI was more than a one-time visitor to the apartment. Likewise, it did not establish that the CI observed any drugs other than the drugs he bought. Under these circumstances, we must conclude that the information in the affidavit became stale as soon as enough time had passed for such a one-time seller to leave the apartment.

Omitting untrue statements from the totality of circumstances for the probable cause, the court concludes there is insufficient evidence on which to base issuance of the search warrant. [Good faith exception not mentioned.] State v. Willis, 302 Ga. App. 355 (2010).*

CI’s story was corroborated when the defendants showed up as described, and police observed several apparent hand-to-hand transactions. That was reasonable suspicion for the stop. State v. Brown, 32 So. 3d 939 (La. App. 4th Cir. 2010).*

After the jury verdict, the court grants the motion to suppress on the ground the defendant’s stop was without reasonable suspicion and the search was without cause, and a judgment of acquittal is entered. United States v. Foster, 752 F. Supp. 2d 1060 (D. Minn. 2010):

Importantly, the Fourth Amendment does not permit police to conduct routine, suspicionless searches of people or vehicles during traffic stops. See Long, 463 U.S. at 1049 n.14 (“We stress that our decision does not mean that the police may conduct automobile searches whenever they conduct an investigative stop ….”). Indeed, as the Supreme Court recently held in Arizona v. Gant, even if a traffic stop leads to an arrest, the police may not automatically search the stopped vehicle. 129 S. Ct. 1710, 1723-24, 173 L. Ed. 2d 485 (2009) (“Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”). To the extent that the government argues otherwise in this case, the government is mistaken.

. . .

North Minneapolis is indeed a high-crime area, but the vast majority of its residents, and the vast majority of those driving through it, are not criminals. The Court does not believe that when police see a person lean forward in a car that they have stopped — even if they have stopped the car late at night in a high-crime area — they have reasonable suspicion to believe that the person is armed and dangerous. There are simply too many alternative explanations for why a person would lean forward, such as to retrieve ID from a purse or backpack, or to move from a slouched to an upright position in the seat. …

In sum, the Court cannot find, by a preponderance of the evidence, that Bohnsack and Ochs had reasonable suspicion to believe that Foster was armed and dangerous when Foster stepped out of the car at the officers’ request. Accordingly, Bohnsack was not justified in conducting a patdown search of Foster. The Court therefore suppresses the magazine that was found in Foster’s pocket. Further, because Bohnsack and Ochs would not have had any reason to search the interior of the Taurus if Bohnsack had not found the magazine on Foster’s person, the Court suppresses the gun that was found in the Taurus. Without this evidence, no reasonable jury could find Foster guilty of unlawfully possessing a firearm or ammunition, and the Court therefore grants Foster’s motion for a judgment of acquittal notwithstanding the jury’s verdict.

The statutory territorial jurisdiction of a state judge to issue a search warrant is irrelevant for Fourth Amendment purposes. United States v. Neil, 407 Fed. Appx. 993 (8th Cir. 2011):

Neil argues that the Dallas County judge lacked statutory authority to issue a search warrant for his residence in Polk County. He contends that under Mo. Rev. Stat. § 542.266, the issuing judge was required to be a judicial officer in Polk County. Accordingly, he asserts, the warrant was invalid and the evidence discovered through the execution of the warrant must be suppressed and his conviction reversed.

But Neil’s contention “fails to recognize that ‘in determining whether evidence obtained solely by state officers is admissible in federal court in the first instance, it is usually irrelevant whether a state rule of criminal procedure was violated.’” United States v. Howard, 532 F.3d 755, 760 (8th Cir. 2008) (quoting United States v. Maholy, 1 F.3d 718, 721 (8th Cir. 1993)). The legality of the search and seizure is not determined by reference to a state statute, but by Fourth Amendment analysis. Id. Here, Neil does not argue that the warrant was unsupported by probable cause or not issued by a detached and neutral magistrate judge. And our review of the record indicates that the warrant complies with the Fourth Amendment. Accordingly, Neil’s argument fails.

Alternatively, Neil’s challenge fails even under state law. …

The seizure of the gun seen from defendant’s waistband was clearly valid and harmless, considering the weight of the case. United States v. Blackman, 407 Fed. Appx. 591 (3d Cir. 2011).*

Even though plaintiff was a landscaper, he worked for a highly regulated sewage treatment facility, and the state could require drug testing. Mollo v. Passaic Valley Sewerage Comm’rs, 406 Fed. Appx. 664 (3d Cir. 2011):

Here, PVSC demonstrated that Mollo was aware of the safety concerns inherent in work at its treatment plant and, as an entity, PVSC clearly satisfies PBA Local 304‘s alternative criterion of a “long tradition of close government supervision.” 151 N.J. at 545 (internal quotation marks and citation omitted). Taking these facts together, Mollo had a diminished expectation of privacy. His duties, though those of a self-described “weed-whacker,” were safety-sensitive: they either required, or could have required, that he engage in tasks—such as the operation of machinery in dangerous places and the use of tools meant to detect whether he and other workers safely could enter certain, possibly dangerous, airspaces—the discharge of which were fraught with risks of serious injury.

[Note: If Von Raab could differentiate gun carrying employees from others, why must a sewage facility insist on drug testing a guy handling a “weed wacker”?]

Defendant’s stop was justified by hitting the centerline twice and weaving in his lane for four miles. State v. Brown, 332 S.W.3d 282 (Mo. App. 2011).*

The trial court erred in granting a suppression motion for defendant’s breath test in a second degree murder shooting case, done just to see how drunk he was. It was lawful under Schmerber despite the fact it was not a DUI case. State v. Dowdy, 332 S.W.3d 868 (Mo. App. 2011).

A Secret Service agent who stopped a suspected counterfeiter and patted him down was able to conclude that the wad of cash in the pocket was immediately apparent as counterfeit money. United States v. Smith, 2010 U.S. Dist. LEXIS 112499 (W.D. Tenn. August 16, 2010):

While Agent Davis did not testify specifically about his personal observations when he felt the wad of cash in Smith’s pocket, it is reasonable to believe that a Secret Service agent investigating a person for passing counterfeit would immediately recognize the feel of a wad of cash in the person’s pocket and believe that it was incriminating evidence. In United States v. Bustos-Torres, 396 F.3d 935 (8th Cir. 2005), an officer observed what he believed to be a drug transaction, and as he conducted a Terry frisk of defendant Alfaro for weapons, the officer came across two wads of bills in Alfaro’s pockets, which the officer seized. On appeal, the Court of Appeals considered whether the officer had probable cause to seize the money, that is, whether the bills, by their mass and contour, were immediately identifiable to the officer’s touch as incriminating evidence. The court, “[p]ondering the question with a dose of common sense,” held that the officer had probable cause to seize the money based on his prior observation of a possible drug transaction and the large number of bills in Alfaro’s pockets. Id. at 945.

Where there were three consensual home visits by CPS before plaintiffs refused a fourth entry, there was no Fourth Amendment violation. Breakwell v. Allegheny County Departement of Human Servs., 406 Fed. Appx. 593 (3d Cir. 2010).*

Defendant consented to the search of his car, and the district court credited the testimony of the officers and not him about consent. His statement “do what you have to do” was construed as consent [that’s kind of dangerous, isn’t it?]. In any event, there was probable cause and the automobile exception applied. United States v. Franklin, 630 F.3d 53 (1st Cir. 2011)*:

Franklin’s other primary argument on this point that the officers’ testimony is suspect because it is not corroborated by a consent form — likewise holds no water. A consent form certainly would have made the prosecution’s task easier, but it was not necessary, and its absence does not undercut the officers’ consistent testimony. Indeed, our case law is clear that “[w]ritten consent is not essential to the establishment of a valid consensual search.” United States v. Barnett, 989 F.2d 546, 555 (1st Cir. 1993).

A consent form was particularly unnecessary here given other evidence sufficient to establish consent: specifically, uncontested testimony that Franklin told the officers to “do what you got to do.”

Statement from the previously reliable known CI was sufficient on the totality of circumstances to show PC for the search warrant, and it was not “bare bones.” United States v. Patterson, 406 Fed. Appx. 773 (4th Cir. 2011) (unpublished),* cert. denied 2011 U.S. LEXIS 3525 (U.S., May 2, 2011).

Defendant dropped drugs in the jail before his strip search. The court considered the validity of the strip search first to see whether the abandonment was caused by an illegal act, and it concluded that the strip search would have been valid. United States v. Warfield, 404 Fed. Appx. 994, 2011 FED App. 0002N (6th Cir. 2011)*:

Here, three facts justified the jail officers’ reasonable suspicion that Warfield possessed drugs: (1) his prior drug conviction; (2) his refusal to submit to a search; and, most importantly, (3) the relayed information regarding Warfield’s suspected possession of contraband, specifically through the alerting of the drug-detection dog. These considerations created reasonable suspicion that Warfield possessed drugs, and thus provided an adequate reason under Bell for the jail officers’ strip-search of Warfield. Therefore, even assuming Warfield did not abandon the baggie of crack cocaine, the threatened strip-search of Warfield was reasonable under the totality of the circumstances and did not violate Warfield’s right to be free of unreasonable searches and seizures under the Fourth Amendment.

Plaintiff inmate’s claim about illegal search was partly barred by Heck, but the two year statute of limitations barred it anyway. Chambers v. Hathaway, 406 Fed. Appx. 571 (3d Cir. 2011),* cert. denied 2011 U.S. LEXIS 3499 (U.S., May 2, 2011).

Forced DNA extraction from a California prison inmate required by statute for identifying information was not a violation of the Fourth or Eighth Amendments. Hamilton v. Brown, 630 F.3d 889 (9th Cir. 2011):

Here, DNA testing under the California DNA Act, like the federal law, is limited to the collection of identifying information. Cal. Pen. Code § 299.5 (limiting use of samples to criminal identification, exclusion of suspects, and identification of missing persons and imposing penalties for misuse). Having been convicted and incarcerated, Hamilton has no legitimate expectation of privacy in the identifying information derived from his DNA. Accordingly, the DNA identification at issue here is no more intrusive than that considered by the court in Kincade.

On Wired.com: Bill Would Keep Big Brother’s Mitts Off Your GPS Data by Spencer Ackerman:

The reauthorization of the Patriot Act looks like a forgone conclusion. But next month, a bipartisan band of legislators will try to mitigate a different kind of damage done to civil liberties: the government’s warrantless collection of location data beamed out by your car or mobile phone.

The courts aren’t sure whether so-called “geolocation” data taken from GPS devices or cellphones is covered by the Fourth Amendment, as Wired.com’s blog Threat Level has extensively reported. That ambiguity has largely enabled law enforcement to snatch it up without getting a warrant or showing probable cause.

Sen. Ron Wyden, a Democrat, and Rep. Jason Chaffetz, a Republican, want to make things crystal clear: no warrant, no geolocation info.

“GPS devices are everywhere and that’s a good thing,” Chaffetz tells Wired.com. “We just don’t want nefarious characters tracking people without someone knowing, nor do I want law enforcement to be able to just follow everyone all the time.”

A bill they’ve collaborated to draft prevents the government from getting tracking data sent by your smartphone, GPS unit or other device — including any “successor device,” a nod to as-yet-unimagined tech — without a court order. It exempts geolocation collection from the Patriot Act’s “business records” provision.

In today’s Washington Post: Congress approves extension of USA Patriot Act provisions:

Racing against the clock, Congress approved a four-year extension Thursday to key provisions of the USA Patriot Act that will allow federal investigators to continue to use aggressive surveillance tactics in connection with suspected terrorists.

Overcoming objections from a bipartisan clutch of libertarian-minded lawmakers, the legislation passed the Senate, 72 to 23, and the House, 250 to 153.

. . .

Under the provisions extended into 2015, investigators can obtain court orders to follow suspected terrorists with “roving wiretaps” that cover multiple phone numbers and carriers. They also will extend provisions that allow investigators to seize customer records for suspected terrorists.

More Barnes fallout (posted here and here): Ruling on illegal police entry sparks protest at statehouse, Hundreds of protestors are expected Wednesday:

INDIANAPOLIS, Ind. (AP) — Hundreds of protesters are expected at the Indiana Statehouse Wednesday.

They’re taking aim at a recent state supreme court ruling. Justices decided residents do not have the right to resist police officers who illegally enter their homes.

The ruling brought Indiana in line with most other states, but critics contend it violates the Constitution’s Fourth Amendment, which guards against unreasonable searches and seizures.

State lawmakers have urged the court to hold a new hearing on the case.

They’re also considering ways to strengthen Indiana’s privacy laws.

Search warrant for all computer-related stuff in defendant’s house was valid in a search for child pornography where the police had information that the defendant used a webcam attached to his computer. The government is not required to anticipate every place child porn may be stored. United States v. Burdulis, 2011 U.S. Dist. LEXIS 53612 (D. Mass. May 19, 2011):

Because defendant used his home computer systems and accessories to commit the crimes and to store evidence of them, there was probable cause to seize and search all digital storage media. See United States v. Crespo-Rios, 623 F. Supp. 2d 198, 202 (D. Puerto Rico 2009) (“There can be no doubt that the allegations contained in the affidavit, which included Defendant’s use of his computer system and accessories to engage in sexually explicit conversations with the alleged presumed minor and the sending via web cam of obscene material to the presumed minor, established probable cause to seize and search Defendant’s digital media.”). Once the government established probable cause to search defendant’s home computer systems, it was not required to anticipate where defendant stored which pieces of evidence. See id. at 202 (“[T]he prohibition of general searches cannot be confused with a demand for precise ex ante knowledge of the location and content of evidence related to the suspected violation.”). The clerk-magistrate’s decision to authorize a seizure and search of all digital storage media had a substantial basis because the warrant application established a nexus between the evidence they expected to find and defendant’s home computer systems.

From the Rand Paul website, him speaking on the PATRIOT Act extension in the Senate, which has video and a transcript, even invoking James Otis who warned and vigorously litigated against the Writs of Assistance a quarter of millennium ago:

Well, the thing is that it will not always be angels that are in charge of government. You have rules because you want to prevent the day that may occur when you get someone who takes over your government through elected office or otherwise who really is intent on using the tools of government to pry into your affairs, to snoop on what you’re doing, to punish you for your political or religious beliefs.

That’s why we don’t ever want to let the law become so expansive. But the thing is you have to realize that you can still get terrorists. We get rapists and murderers every day by calling a judge. That’s what I’m asking for.

I’m asking that we go through and obey the Fourth Amendment.

. . .

We cannot give up our liberty. If we do, if we trade it for security, we’ll have neither.

So I rise in opposition to the vote on cloture.

I will be introducing amendments to the PATRIOT Act this week, and we will be having a real debate about how we can stop terrorism but also preserve freedom at the same time.

Thank you.

A TeaPartier that gets it!

Linda Greenhouse in the NYT on Kentucky v. King: Justice in Dreamland, i.e., SCOTUS is out of touch with reality:

Do the police stake out the apartment and go for a warrant? No, they do not. Instead, they bang on the door, shouting, “Police, police, police.” No response — at least, no verbal response. From behind the door the officers hear the sound of “people inside moving” and objects “being moved.” Aha! Evidence may be about to be destroyed. Announcing that they are coming in, the officers kick in the door and find not the man they were looking for, but three other people, one of whom is smoking marijuana. More marijuana, along with cocaine, is in plain view.

…

Fourth Amendment law is enormously complex (although not as complex as it once was, now that the state wins almost all the cases) and I make no pretense here of unpacking it wholesale. Nor do I argue that this case was the most important on the court’s docket; even accepting Justice Ginsburg’s conclusion that the police could easily have obtained a warrant and that the majority had gratuitously used the case “to contract the Fourth Amendment’s dominion,” the criminal justice system has hardly been shaken to its core.

But in fact, its very ordinariness is what makes this decision worth pondering. It’s worth stopping to consider the assumptions about human nature that underlie not only this ruling but much of the court’s Fourth Amendment jurisprudence. It’s worth wondering what planet the justices — most of them, anyway, and not just the incumbents, but many of their predecessors — have been living on when it comes to encounters between the police and the rest of us.

On Forbes.com, referring to a recent suit filed in Richmond: Why You Should Think Very Seriously Before Expressing Political Views at Airport Security about a man questioned by TSA and air marshals for stripping down to his running shorts so TSA could see part of the Fourth Amendment written on his chest. For this he was questioned about terrorist affiliations and then charged with disorderly conduct in Virginia state court.

I go through TSA checkpoints twice every two weeks, and some of them seem humorless. At least at my home airport they recognize me. But, to seek to charge a man with disorderly conduct for the passive act of writing part of the Fourth Amendment on his chest and then baring it so they could read it? Obviously TSA and the Virginia police doing its bidding never heard of Cohen v. California, decided 40 years ago this June 7th. If “Fuck the Draft” during the height of the Vietnam War was protected speech, it boggles the mind that a sign on one’s body with a part of the constitution is a crime in Virgina. TSA will argue that the First Amendment does not apply at airport security. They told the plaintiff that the Fourth Amendment doesn’t. [The Second Amendment sure can’t.]

James Madison must be rolling in his grave.

I normally wouldn’t give the time of day to World Net Daily, what with its usual finding of an Obama conspiracy under every rock. However, there is this troubling story [that somehow links a SWAT shooting of an innocent man in Tucson to this “regime”]: Iraq vet killed by regime at home:

Jose Guerena, a former (2002-2006) U.S. Marine, survived two combat tours in Iraq to return to his native Tucson, Az., to start a family.

On May 5, Jose was shot 60 times and killed in his home in front of his wife and their 4-year-old son by five armed men who broke into his home and only later identified themselves as a sheriffs’ SWAT unit serving a warrant for drugs. No drugs were found. The Guerenas had no criminal record.

Guerena’s neighborhood was known for home invasion robberies.

Odor of drugs coming from a locked car at a club in Louisiana that was blocked in by police cars, and the driver was not around to produce the keys. The car was not “readily mobile” for the automobile exception. State v. Millet, 2010 La. App. LEXIS 577 (La. App. 5th Cir. April 27, 2010).

Defendant was validly arrested for being a resident of Massachusetts without a valid license, having a New Brunswick license instead, but living here. His pickup truck was towed and inventoried, and the only issue was the validity of the arrest for driving without a license. If the arrest was valid, so was the search. Commonwealth v. Chown, 76 Mass. App. Ct. 684, 925 N.E.2d 562 (2010),* revd Commonwealth v. Chown, 2011 Mass. LEXIS 349 (May 20, 2011) (here).*

In a § 1983 trial over consent to search, the trial court properly put the burden of proof on the defendants to prove that consent was voluntary. Tirreno v. Mott, 375 Fed. Appx. 140 (2d Cir. 2010) (unpublished).