DUI is a sufficiently grave offense that a warrantless entry might be justified. Here, however, it was not because the state could not show that defendant would consent to a taking of his breath or blood to test it. People v. Wehmas, 246 P.3d 642 (Colo. 2010):

Consistent with Welsh [v. Wisconsin], [Illinois v.] McArthur, and Mendez, we conclude that DUI is a sufficiently grave offense to potentially justify a warrantless home entry. In light of McArthur v. Illinois, it was legal error for the county court and district court to conclude otherwise.

As those cases suggest, however, this is not the end of the inquiry. Simply concluding that an underlying offense is grave does not create sufficiently exigent circumstances to justify warrantless entry. See Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (Pa. 1978) (finding warrantless home arrest for murder invalid after balancing the relevant factors and finding insufficient exigent circumstances, cited in Welsh, 466 U.S. at 752). We must proceed to review the circumstances surrounding the warrantless entry into Wehmas’s apartment.

. . .

In this case, even before we reach the factors unique to the destruction of evidence, the circumstances suggest that the prosecution has failed to show sufficiently exigent circumstances to justify a warrantless entry. Although there was probable cause that a grave offense had been committed and it was likely that Wehmas was in the apartment, there was no evidence or objectively reasonable belief that he was armed or that he would escape if he was not quickly apprehended. There was also no evidence that obtaining a warrant was problematic because it was late at night; instead, the night-time entry weighs against considering the officers’ actions to be reasonable under the circumstances because of the highly intrusive nature of making the entry. The alleged offense had ended, no weapons were involved, and the defendant had not reemerged from his apartment. Moreover, the prosecution already had evidence of Wehmas’s intoxication based on reports from two eyewitnesses.

Plaintiff’s suit against the government in the Court of Federal Claims is dismissed. It could not be based on a contract or takings clause theory, and Fourth Amendment claims cannot be based in that court. Also, no Fourth Amendment claims has succeeded yet in any court. Kam-Almaz v. United States, 96 Fed. Cl. 84 (2011):

According to an editorial in The New York Times of November 15, 2010, during an 18-month period between 2008 and 2010, some 3,000 returning Americans had their laptop computers seized and their contents examined by U.S. Customs. Moreover, as was the case with Mr. Kam Almaz, U.S. Customs agents may freely share the data from those computers — personal and business records, web-site visits, email —again without a warrant or even reasonable suspicion. Challenges in District Court to these Fourth Amendment exceptions have not been successful. The New York Times calls for legislative limits on the Government’s right to access and share computer data. Such legislation would presumably not help Mr. Kam Almaz, who has a more prosaic complaint — he seeks compensation for losses he suffered from damage to the computer and its data while in the possession of U.S. Customs.

A school administrator’s search that produced a gun was not a police search just because the school resource officer showed up while the search was going on. Ortiz v. State, 2010 Ga. App. LEXIS 1010 (October 27, 2010).*

Defendant’s claim that his counsel was ineffective for not challenging the seizure of body armor used in a robbery he was convicted of fails because he can’t show that the search would be suppressed. Nyane v. State, 2010 Ga. App. LEXIS 1008 (October 27, 2010).*

Defendant was speeding, and the officer had the subjective intent to stop the defendant. There were furtive movements before he got out of the car, and the officer smelled marijuana. His handcuffing was reasonable. State v. Mitchell, 52 So. 3d 155 (La. App. 5th Cir. 2010).*

Defendant was charged with smoking in the boy’s room, and a school police officer searched his shoes finding a small quantity of drugs and marijuana. Searching the shoes was not shown to be reasonable under T.L.O. for the infraction under investigation, and the state failed in its burden of proof of showing the search of shoes reasonable for tobacco. State v. Taylor, 50 So. 3d 922 (La. App. 4th Cir. 2010).*

Defendant was not seized by officers who walked up in a nonthreatening manner where one said “‘Hey, what’s up’ or ‘Hey, what’s going on.’” He dropped (abandoned) a bag of drugs. State v. Stokes, 50 So. 3d 884 (La. App. 5th Cir. October 12, 2010).*

A CI gave information that a specifically described man was working a street corner selling drugs. The officer went to the area to watch the corner, and corroborated the CI by watching three apparent drug deals. There was thus reasonable suspicion for the stop. State v. Johnson, 52 So. 3d 110 (La. App. 5th Cir. 2010).*

The search of defendant’s car was invalid under Gant, but the gun would have been inevitably discovered through a valid inventory which the government asserted as an alternative justification. United States v. Garreau, 735 F. Supp. 2d 1155 (D. S.D. 2010), R&R 2010 U.S. Dist. LEXIS 85597 (D. S.D. 2010).*

Officer’s approach to a parked car and tapping on the window was not a seizure. Richter v. N.D. DOT, 2010 ND 150, 786 N.W.2d 716 (2010).*

Officer’s observation of person getting into car with a beer bottle from a convenience store and opening it was reasonable suspicion for a stop. The driver’s license was suspended. State v. Sound Sleeper, 2010 SD 71, 787 N.W.2d 787 (2010).*

Pennsylvania law differs from California law, so Samson does not apply to this parole search. Nevertheless, defendant was driving unauthorized cars, and that justified a search of defendant’s home, too. United States v. Benjamin, 2010 U.S. Dist. LEXIS 85960 (E.D. Pa. July 26, 2010).*

Entry into a house at 3 a.m. was with probable cause and exigent circumstances chasing a fleeing probable felon. State v. Owen, 126 Conn. App. 358, 10 A.3d 1100 (2011):

Here, the evidence readily would persuade a reasonable person to believe that criminal activity had occurred in that three police officers, at 3 a.m., heard the sound of multiple gunshots close to their location in a residential area. The evidence also would lead a reasonable person to believe that there was a fair probability that contraband or evidence of a crime would be found in 1050 Stratford Avenue. Within moments of hearing the sound of gunshots, the officers arrived at the location of the gunshots. They observed four men fleeing the scene, which was an otherwise deserted city street. A reasonable person would infer that their presence in the area of the gunshots, the early hour and their flight was consistent with their involvement in criminal activity related to the gunshots. The three men who did not flee into the residence were apprehended, searched and found to be unarmed. On these facts, a reasonable person would suspect that the fourth man, who was observed fleeing into the residence, was in possession of evidence of a crime, to wit: the gun used in the incident. Upon knocking at the door of the residence, the police did not learn any facts that would dispel their suspicions, but spoke with Smith, who provided them with facts concerning who was present in the residence. These representations, however, contradicted what the police officers themselves had witnessed moments earlier, thus heightening in the mind of a reasonable person a suspicion that criminal activity was afoot in the residence.

A student and his parents sued their school district because of a suspicionless drug dog sniff of school property that led to another student getting arrested. By the time the case reached the Connecticut Supreme Court, the student had graduated, and, because there wasn’t another similar search in the meantime, the case was moot. Burbank v. Bd. of Educ. of Canton, 299 Conn. 833, 11 A.3d 658 (2011).*

Owner of premises had apparent authority to consent to a search of all rooms. Defendant was present and did not object to the search of his room to show that he had separate control. United States v. Radillo, 2011 U.S. Dist. LEXIS 22751 (W.D. Mo. January 19, 2011)*:

The Court finds that Anjanette Lewis had apparent, if not actual, authority over the entire residence. The officers had been told by Anjanette Lewis that she was the owner of the residence. … Anjanette Lewis signed a Consent to Search the “residence.” … “The typical reasonable person would have understood this to mean every room, the sum of which is the house [i.e. the residence].” United States v. Fleck, 413 F.3d 883, 892 (8th Cir. 2005). The only other person who claimed to live at the residence, Monica Lewis, gave the officers verbal consent to search. … The officers had not threatened Anjanette Lewis or Monica Lewis in any way nor had they done anything to coerce their consent. … Defendant Radillo made no objections while the officers were searching the premises. There was no constitutional violation.

Officers had probable cause to stop defendant for “traveling at 82 miles per hour in excess of the posted speed limit, which is a violation of the California Vehicle Code.” And, defendant consented to the search of his vehicle. His actions showed an intent to consent, even if he did not understand English, which he never communicated to the officers. United States v. Sanchez-Palomino, 2011 U.S. Dist. LEXIS 23562 (E.D. Cal. February 18, 2011).*

Congressional Research Services: Law Enforcement Use of Global Positioning (GPS) Devices to Monitor Motor Vehicles: Fourth Amendment Considerations by Alison M. Smith, Legislative Attorney (Feb. 28, 2011).

Benjamin Holley, Digitizing the Fourth Amendment: Limiting the Private Search Exception in Computer Investigations, 96 Va. L. Rev. 677 (2010)

Abstract SSRN:

The “Private Search” exception to the Fourth Amendment allows law enforcement officers to re-create, without a warrant, a search conducted by a private individual, provided two conditions are met. First, the individual may not act at the behest of the government (the agency prong) and second, officers may not search beyond what was already discovered by the private searcher (the scope prong). The exception is premised on the theory that the private searcher destroyed whatever expectation of privacy the suspect had in his information, thereby eliminating any Fourth Amendment protection. In applying this otherwise well-understood exception to searches of computers, however, courts have adopted widely varying approaches based on divergent assumptions and leading to dramatically different results. This Note argues that, because of the nature of computer storage, courts should narrow the application of the private search exception by broadly interpreting the “agency” prong and narrowly interpreting the “scope” prong. Such an approach maintains the purpose of the exception without unduly sacrificing informational privacy or law enforcement efficacy.

Police Cameras and Crime | Can a surveillance state make us safer? by Steve Chapman on Reason.com February 21, 2011:

If you want to be on TV, don’t go to Los Angeles or New York. Come to Chicago, where your wish is certain to be fulfilled. In fact, you couldn’t avoid it if you wanted to, thanks to the nation’s most extensive network of police surveillance cameras. Anytime you walk out your door, you may find an audience.

This is one of Mayor Richard M. Daley’s proudest achievements, but the estimated 10,000 devices now in operation are not enough for him. He once expressed his intention to keep adding cameras until there is one “on every street corner in Chicago.”

His obvious error is to assume that if some cameras are good, more are better. Daley’s policy also rests on a plausible but unproven assumption: that cameras reduce crime by deterring criminals and helping nab those who aren’t deterred.

I remember a bus sign in NYC years ago: “Want to be on TV? The average American is on TV somewhere 17 times a day.” They just haven’t invented the telescreen yet, but the telescreen kept talking to Winston.

Officers present with an arrest warrant also did a protective sweep of an outbuilding on defendant’s property; it was justified by reasonable suspicion that another person could have been there. United States v. Carpenter, 2011 U.S. Dist. LEXIS 16862 (E.D. Tenn. January 11, 2011).*

Officers came upon a group of men standing in a parking lot, but it was non-confrontational and nobody was asked for their ID. Officers then developed reason to believe that one of them could have been armed, and that justified a frisk of that man. United States v. Tuggle, 2010 U.S. Dist. LEXIS 141528 (W.D. Tenn. December 30, 2010).*

Defendant’s Franks challenge fails because the omitted information had nothing to do with the probable cause that already existed. When the police entered with a search warrant for a counterfeiting operation, a shotgun found was then in plain view because they were authorized to be there by the search warrant. United States v. Bryan, 2011 U.S. Dist. LEXIS 17250 (N.D. Va. February 22, 2011).*

Defendant’s allegation that he was employed merely to clean the house that was searched was a showing that he did not have standing to challenge a search of the premises. United States v. Twiggs, 2011 U.S. Dist. LEXIS 17003 (E.D. Pa. February 17, 2011).*

Defendant had guest standing but did not have sufficient exclusive control over the room he was staying in such that the principal occupant of the premises couldn’t consent to a search of the room. The consenter came and went through the room during the day keeping his own stuff there. United States v. Noyola-Martinez, 2011 U.S. Dist. LEXIS 18075 (D. Alaska February 22, 2011).*

The undisputed evidence was that defendant consented to the search of his property, so his lawyer was not ineffective for not challenging it. Jones v. United States, 2011 U.S. Dist. LEXIS 17264 (W.D. Mo. February 22, 2011).*

The search warrant in this case was issued by a state judge on a state officer’s application. While the product of the search led to a federal indictment, it was a state search governed by state law so Rule 41 does not apply. But, even if it did, there are two types of Rule 41 violations: constitutional violations and all others. United States v. Simons, 206 F.3d 392 (4th Cir. 2000). This is not a constitutional violation. This was an investigation of a violation of a burglary that produced a sawed-off shotgun which is also a violation of federal law. The search warrant made this a lawful plain view. United States v. Bryan, 2010 U.S. Dist. LEXIS 141565 (N.D. W.Va. December 2, 2010).*

Defendant had standing over his own detention on the side of the road as a passenger. While the question of standing in the car is more complicated, the driver consented and was a joint operator under defendant’s theory. The length of the detention on the side of the road was not unreasonable under circuit law. United States v. Herrera, 2011 U.S. Dist. LEXIS 18416 (M.D. Ala. January 5, 2011).* The driver’s case on reasonable suspicion is United States v. Herrera, 2011 U.S. Dist. LEXIS 18458 (M.D. Ala. February 24, 2011).*

Defendant’s § 2255 fails. On the search claim, because it depended on an assertion that the affidavit did not incorporate something, but it did. Haque v. United States, 2011 U.S. Dist. LEXIS 18235 (N.D. Ohio February 24, 2011).*

The knock and talk here was valid and not oppressive. It wasn’t at night and there wasn’t prolonged knocking or questioning. Defendant consented. United States v. Ramirez-Fuentez, 2011 U.S. Dist. LEXIS 18430 (N.D. Ind. February 23, 2011).*

Can You Handle the Truth? The Framers Preserved Common-Law Arrest and Search Rules in ‘Due Process of Law’–‘Fourth Amendment Reasonableness’ is Only a Modern, Destructive, Judicial Myth by Thomas Y. Davies, 43 Texas Tech L. Rev. 51 (2010).

Abstract:

The conventional academic account of Fourth Amendment (or search and seizure) history has been shaped by uncritical acceptance of claims in Supreme Court opinions that the reference to “unreasonable searches and seizures” in that text was intended to created a broad “reasonableness” standard for assessing all government arrests and searches, whether made with or without warrant. This article marshals salient evidence from the author’s more detailed prior articles to demonstrate that this claim is merely a prochronistic myth that grossly understates the criminal procedure standards the American Framers thought they had preserved.

The article first describes the actual common-law standards for criminal arrests and related searches to show that mere “reasonableness” was never recognized as a standard in framing-era sources. It also documents that the accusatory common-law criminal arrest standards were actually understood to be salient features of the “law of the land” and “due process of law” protections set out in other constitutional provisions, and that criminal search authority was essentially an appendage of arrest authority. Thus there was neither room nor reason for the Fourth Amendment to address warrantless arrests or searches, or even criminal arrest warrants. Rather, the only unsettled search issue at the time of the framing was the scope of legislative authority regarding revenue search warrants, so the Fourth Amendment was framed simply to ban Congress from authorizing use of too-loose warrants for revenue searches of houses, while the Fifth Amendment due process of law clause preserved criminal procedure standards. (Along the way, the article identifies deficiencies in recent historical claims by Professors Fabio Arcila (notes 122, 204) and Thomas Clancy (note 225).)

The article then describes how nineteenth century judges destroyed the original understanding of due process of law and thus left federal Supreme Court justices free to reinvent modern “search and seizure” doctrine under the Fourth Amendment, to invent the concept of Fourth Amendment reasonableness in the 1925 Carroll decision to justify warrantless searches where lawful arrests could not be made, and more recently to exploit the flexible character of reasonableness to effectively create discretionary police arrest and search authority comparable to that conferred by the general warrant which the original Fourth Amendment was meant to abolish.

From the Texas Tech Law Review website (sub. req.):

02/23/2011 | The Majestic and the Mundane: The Two Creation Stories of the Exclusionary Rule
Written by Scott E. Sundby & Lucy B. Ricca
The Supreme Court’s decision in Herring v. United States resurrected the debate over the future of the exclusionary rule in American criminal procedur…

02/23/2011 | Reasonable Remedies and (or?) the Exclusionary Rule
Written by Kenneth W. Starr & Audrey L. Maness
This Symposium on the Fourth Amendment posed a variety of questions to a number of contributors: How important is history to resolving Fourth Amendment …

02/23/2011 | Picture This: Body-Worn Video Devices (Head Cams) as Tools for Ensuring Fourth Amendment Compliance by Police
Written by David A. Harris
Picture this: a police officer shoots a civilian in the back in a public place. The police officer says that the man assaulted him, resisted arrest, …

02/23/2011 | Pragmatism, Originalism, Race, and the Case Against Terry v. Ohio
Written by Lawrence Rosenthal
Perhaps no decision of the United States Supreme Court concerning the Fourth Amendment’s prohibition on “unreasonable search and seizure,” has received …

02/23/2011 | The Fourth Amendment as a Collective Right
Written by Thomas K. Clancey
The Fourth Amendment speaks of “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and…

02/23/2011 | The White Fourth Amendment
Written by Paul Butler
There is a scene near the end of the Academy Award winning film The Blind Side in which the character played by Sandra Bullock has gone to a low-income …

02/23/2011 | Suspicion and the Protection of Fourth Amendment Values
Written by Fabio Arcila, Jr.
Suspicion is perhaps the core foundational principle through which we seek to protect and vindicate Fourth Amendment values. Fourth Amendment law cou…

02/23/2011 | Stumbling Toward History: The Framers’ Search and Seizure World
Written by George C. Thomas
Most of what you think you know about the Fourth Amendment is wrong—at least as a matter of what the Framers intended. The problem begins with the te…

02/23/2011 | The Happy Fourth Amendment: History and the People’s Quest for Constitutional Meaning
Written by Andrew E. Taslitz
I will argue here that history should play an expansive, though by no means decisive, role in giving the Fourth Amendment meaning. By expansive, I me…

02/23/2011 | Can You Handle the Truth? The Framers Preserved Common-Law Criminal Arrest and Search Rules in “Due Process of Law”–“Fourth Amendment Reasonableness” is Only a Modern, Destructive, Judicial Myth

02/23/2011 | Written by Thomas Y. Davies
Should Fourth Amendment decisions be based on history? And, how well does the Supreme Court do in setting out Fourth Amendment history? These questi…

02/23/2011 | A Conclusion in Search of a History to Support It
Written by Morgan Cloud
Originalism is not a theory of constitutional interpretation. It is not a historical method. It is a rhetorical device deployed to win arguments. O…

02/23/2011 | The Roberts Court and Criminal Procedure at Age Five
Written by Erwin Chemerinsky
On Tuesday, June 29, 2010, the Supreme Court officially concluded its fifth year with John Roberts as Chief Justice, its first year with Justice Sonia…

02/23/2011 | The Fourth Amendment: History, Purpose, and Remedies
Written by Arnold H. Loewy
In this symposium issue, the papers are addressed primarily to three topics: (1) How important is (should) history (be) to the resolution of Fourth Am…

A FedEx package with drugs was shipped from Oakland to Anchorage, and FedEx discovered that the package contained drugs, and the police were called in. A controlled delivery was conducted, and the package was delivered and then moved from one place to another. The police followed and secured the premises where the package moved. This was reasonable under McArthur. However, during the protective sweep, officers moved the mouse on the house computer to activate the screen and saw they were looking at the FedEx website and the tracking number of the package. That exceeded the protective sweep. United States v. Lawson, 2011 U.S. Dist. LEXIS 21596 (D. Alaska March 3, 2011):

The government does not explain by evidence how the computer screen could reveal the web page for FedEx tracking without the “mouse” being moved particularly with a screen saver that placed the screen in rest mode while not in use. The computer screen in the recreation room would have been observed by the officer long after the package had been delivered. There was no longer a need for anyone to be tracking the delivery of the package. Moving the mouse was beyond the scope of a lawful protective sweep. The search of the screen exceeded a protective sweep.

The affidavit was detailed and provided probable cause for the search. Even if it did not, the good faith exception would apply because the affidavit is not so lacking in detail that a magistrate could not find probable cause. Seizure of silencers under the warrant, even if not a “firearm,” is justified by plain view. United States v. Marshall, 2011 U.S. Dist. LEXIS 21415 (S.D. Fla. March 3, 2011).*

The court denies defendant’s motion to reconsider the motion to suppress on the ground that the late disclosed video of the stop had the officer seemingly admitting that he did not see the gun in plain view. It does not matter because there was sufficient justification here for a towing and inventory of the vehicle, and the gun would inevitably be discovered. United States v. Richardson, 2011 U.S. Dist. LEXIS 21176 (N.D. Tex. March 1, 2011).*

At ATL customs, defendant was sent for a secondary search, and his luggage was x-rayed and searched, and officers found meth in a picture frame. Defendant had a prior arrest for drugs, and he was strip searched and it was reasonable on this record. United States v. Laureano-Castellon, 2011 U.S. Dist. LEXIS 22861 (N.D. Ga. March 7, 2011), R&R 2010 U.S. Dist. LEXIS 141849 (N.D.Ga. December 23, 2010):

CBP Chief Pugh also testified that in his experience working for CBP, when narcotics were found in luggage, it was not unusual to find drugs on the body of the person who possessed the luggage in which the narcotics had been found. Therefore, Magistrate Judge Hagy did not clearly err in concluding that the CBP officers had the requisite reasonable suspicion and particularized evidence to justify a limited strip search of that part of Defendant’s body that could not adequately be searched by a pat down; the partial strip search of Defendant did not violate his Fourth Amendment rights.

Defendant’s post-verdict judgment of acquittal for possession of marijuana was denied because there was evidence from which a jury could have convicted, including him sitting in the police car caught on the audio of video recording saying “So, what happened to the weed? So, what happened to the weed?” United States v. Williamson, 2011 U.S. Dist. LEXIS 22770 (E.D. N.C. March 4, 2011).*

By the time a drug dog was brought out to sniff defendant’s car, the officer developed reasonable suspicion from her extreme nervousness and shaking hands and inability to answer elementary questions about her travels. United States v. Fajardo-Guevara, 2011 U.S. Dist. LEXIS 22070 (M.D. La. March 4, 2011).*

On CBS4 Miami: Dade Cops Waiting To Get Crime Fighting Drone Airborne:

Miami-Dade’s newest crime fighting tool is a literal ‘eye in the sky’.

The Micro Air Vehicle, or MAV for short, is a small radio controlled drone aircraft equipped with a portable camera system. Miami-Dade Sgt. Andrew Cohen said drone will be used to gather real time information in situations which may be too dangerous for officers.

“If an SRT (Special Response Team) has to go into an area they don’t know what’s there, we don’t know what is in the backyard,” said Cohen, “They want to know if there are dogs in the backyard, if there is a shed, things that could be a threat to us.”

The MAV is used by the military to scan dangerous areas before troops are sent in. Miami-Dade police used a $50,000 grant to buy one, but not everyone is happy with the purchase.

“What happens when they fly over backyards and they see something without a warrant that they want to take against,” said ACLU Executive Director Howard Simon.

On Danger Room: Drones Set to Invade National, State Parks, by Richard Wheeler posted February 28, 2011.

Two years ago, a PD in my county acquired a drone.

See generally Police Aviation News.

DHS Conducts ‘Drive-by’ Surveillance. What’s Next? The government flouts the Fourth Amendment in the name of security, by Annie Jacobsen, describing Homeland Security’s contracts for mobile backscatter machines already used at airports and by Customs in ports and border crossings to inspect vehicles parked on the street.

Now, the Electronic Privacy Information Center, or EPIC, has made public a series of government contracts that reveal that the Department of Homeland Security has been paying millions of dollars to develop and implement several radical programs that allow for an even broader, even spookier form of covert surveillance, namely “drive-by” surveillance from innocuous looking vans. In its own words this allows the Department of Homeland Security to conduct “covert inspection of moving subjects,” which includes people, places, and things.

According to a former Homeland Security officer who spoke on the condition of anonymity, DHS has been conducting this “drive-by” surveillance of American citizens since at least 2007, using a technologically advanced vehicle called a Z Backscatter Van, or ZBV for short. The corporation that makes the surveillance van, American Science and Engineering Inc. (AS&E), received a $17.5 million service contract from the U.S. government for the ZBVs in the winter of 2007.

“The system’s unique ‘drive-by’ capability allows one or two operators to conduct X-ray imaging of suspect vehicles and objects while the ZBV drives past,” says AS&E on its website. “The ZBV can also be operated in stationary mode by parking the system and producing X-ray images of vehicles as they pass by,” it adds. Screening can also be performed remotely while the system is parked. “The system is unobtrusive, as it maintains the outward appearance of an ordinary van,” says AS&E.

This is not new. See my post from August 25, 2010 about a piece on Prison Planet.

In the Smilin’ Bob Enzyte case from the Sixth Circuit, United States v. Washak, 631 F.3d 266 (6th Cir. 2010), the Court held that emails have Fourth Amendment protection. First, a summary of the holding:

(1) Warshak enjoyed a reasonable expectation of privacy in his emails vis-a-vis NuVox, his Internet Service Provider. See Katz v. United States, 389 U.S. 347 (1967). Thus, government agents violated his Fourth Amendment rights by compelling NuVox to turn over the emails without first obtaining a warrant based on probable cause. However, because the agents relied in good faith on provisions of the Stored Communications Act, the exclusionary rule does not apply in this instance. See Illinois v. Krull, 480 U.S. 340 (1987).

From the opinion:

Turning first to the subjective component of the test, we find that Warshak plainly manifested an expectation that his emails would be shielded from outside scrutiny. As he notes in his brief, his “entire business and personal life was contained within the … emails seized.” Appellant’s Br. at 39-40. Given the often sensitive and sometimes damning substance of his emails,15 we think it highly unlikely that Warshak expected them to be made public, for people seldom unfurl their dirty laundry in plain view. See, e.g., United States v. Maxwell, 45 M.J. 406, 417 (C.A.A.F. 1996) (“[T]he tenor and content of e-mail conversations between appellant and his correspondent, ‘Launchboy,’ reveal a[n] … expectation that the conversations were private.”). Therefore, we conclude that Warshak had a subjective expectation of privacy in the contents of his emails.

The next question is whether society is prepared to recognize that expectation as reasonable. See Smith, 442 U.S. at 740. This question is one of grave import and enduring consequence, given the prominent role that email has assumed in modern communication. Cf. Katz, 389 U.S. at 352 (suggesting that the Constitution must be read to account for “the vital role that the public telephone has come to play in private communication”). Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, “account” is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner’s life. By obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities. Much hinges, therefore, on whether the government is permitted to request that a commercial ISP turn over the contents of a subscriber’s emails without triggering the machinery of the Fourth Amendment.

In confronting this question, we take note of two bedrock principles. First, the very fact that information is being passed through a communications network is a paramount Fourth Amendment consideration. See ibid.; United States v. U. S. Dist. Court, 407 U.S. 297, 313 (1972) (“[T]he broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards.”). Second, the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish. See Kyllo v. United States, 533 U.S. 27, 34 (2001) (noting that evolving technology must not be permitted to “erode the privacy guaranteed by the Fourth Amendment”); see also Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005, 1007 (2010) (arguing that “the differences between the facts of physical space and the facts of the Internet require courts to identify new Fourth Amendment distinctions to maintain the function of Fourth Amendment rules in an online environment”).

See Electronic Frontier Foundation, ZDNet.

Officer’s delay in making a traffic stop after the occurrence did not make it unreasonable. There is no bright line rule for that. When it was determined that nobody in the car had a valid DL, it was impounded and an inventory occurred. Apparently significantly, the inventory went to conclusion before the officer spoke a word to the defendant about the fake IDs and gun in the vehicle. United States v. Schultz, 2010 U.S. Dist. LEXIS 95439 (D. Nev. May 18, 2010), adopted 2010 U.S. Dist. LEXIS 95426 (D. Nev. September 13, 2010).

Defendant failed in a Franks challenge to show a knowing or reckless falsity. At best, he showed that the statement was negligent. And, removing the statement from the affidavit, there still was probable cause. United States v. Purifoy, 396 Fed. Appx. 202 (6th Cir. 2010).*

Considering the four factor Dunn curtilage test, the garage fairly separate from defendant’s house was not part of the curtilage. There was a 7′ fence on one side, but a four foot wall on another, and officers could easily see in from off the property. It was not close enough to the house to qualify as curtilage. Police entered after a controlled buy went down. United States v. Ortiz, 2010 U.S. Dist. LEXIS 95614 (M.D. Pa. September 14, 2010).*