The trial court [recognized the realities and] found that defendant would not reasonably feel free to leave after he was stopped and was talking to the officer who asked him what he had on him and called for backup, and back up arrived. The motion to suppress should have been granted because there was no reasonable suspicion for the detention. State v. Levias, 239 Ore. App. 116, 243 P.3d 880 (2009)*:

On appeal, defendant asserts that, considering the circumstances (including the hour of the day, the flashing overhead lights, the officer’s call for backup, the high-crime location, and the direct questioning of defendant about criminal activity), defendant was stopped when Murphy asked him for consent to search. At that point, defendant contends, defendant reasonably believed that, in light of the circumstances, he was under investigation for criminal activity and therefore was not free to leave. In the state’s view, no stop occurred; rather, Murphy engaged defendant in mere conversation, and defendant subsequently voluntarily consented to the search of his person.

Officers were patrolling around a “low-end motel” known for drugs and prostitution where several arrests had been made. Defendant drove into the parking lot and ultimately got stopped and was handcuffed because it was a “high crime area.” The officers had a probable stolen vehicle in the parking lot, but there were no facts to link defendant to the vehicle nor to any crime. His stop was unreasonable. State v. Clack, 2010 Ohio 5747, 2010 Ohio App. LEXIS 4834 (2d Dist. November 24, 2010).*

Defendant’s consent to search his motel room was general and unlimited. He gave over the key to the room. Defendant’s approach to consent here was essentially unworkable. United States v. Green, 388 Fed. Appx. 375 (5th Cir. 2010) (unpublished)*:

By insisting that we consider only his nonspecific acquiescence in Officer Turrentine’s statement that he would enter the motel room and retrieve Ms. Perkins from it, Green essentially urges us to adopt an artificially surgical approach to delimiting the outer bounds of consent. Such an approach cannot be squared with the reasonableness standard that our precedents have established for analyzing the scope of consent, especially when, as here, Green’s actions so belie his claims.

Defendant’s Franks challenge fails. “[I]it is clear that Detectives Mounts and Friend had reasonable grounds to believe that the statements made in the affidavit were true” about defendant’s involvement in the crime. United States v. Jefferson, 717 F. Supp. 2d 790 (S.D. Ohio 2010).*

Defendant consented to the taking of his blood. He is charged with involuntary manslaughter on an Indian reservation. United States v. Dow, 2010 U.S. Dist. LEXIS 65375 (D. Minn. June 11, 2010).*

Defendant’s duffle bag made a “thud” when it was dropped, and it was searched for weapons. The court finds that the frisk of the duffle bag was unreasonable when looking to the government’s authorities where there was more information or even a feel of the bag on whether there was gun inside. Here, no. United States v. Davis-Devine, 721 F. Supp. 2d 571 (E.D. Mich. 2010):

Contrasting the officer’s actions in Williams to Officer Reese’s actions in the present case shows what Officer Reese could have done differently. In the present case, Officer Reese testified that he picked up Defendant’s duffle bag from the floor, and immediately opened it. After securing the bag and ameliorating any purported safety concern, Officer Reese did not: (1) ask Defendant whether he could open the duffle bag; (2) ask Defendant what was in the duffle bag; or (3) feel the duffle bag to attempt to determine if it contained a weapon. Officer Reese should have taken some, or all, of these steps before opening Defendant’s duffle bag.

Because the undersigned finds that the search of Defendant’s duffle bag was unlawful, any evidence or contraband discovered as a result of that intrusion was illegally obtained. See United States v. Williams, 604 F.2d 1102, 1123 (8th Cir. 1979). Therefore, all the evidence recovered from Defendant’s blue duffle bag, from Defendant’s person after he was arrested and from Defendant’s hotel room should be suppressed.

$100,000 verdict for a wrongful search warrant arising from a landlord tenant dispute was affirmed. Ellison v. Balinski, 625 F.3d 953 (6th Cir. 2010):

In any case, even assuming the existence of probable cause as to the occurrence of a crime, the affidavit failed entirely to establish a nexus between the material to be seized and the place to be searched. The affidavit did not state how Defendant came to know that MyaBrooke Properties was located at the residence, or, more critically, why documentation of an allegedly fraudulent mortgage might with a fair probability be found there. Given these rather stark defects in the affidavit, a reasonable jury could conclude that Defendant lacked probable cause when she applied for the warrant to search Plaintiff’s residence.

“‘The Court of Federal Claims is a court of limited jurisdiction.’ Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997). Plaintiff’s constitutional, tort and criminal claims fall outside of that limited jurisdiction.” Moreover, the State of California and individual defendants cannot be sued in that court. Reid v. United States, 95 Fed. Cl. 243 (2010).*

Defendant’s motion to suppress his stop on a club parking lot on a military base because it was not a “highway” within state law is granted and the case is dismissed. United States v. Irving, 2010 U.S. Dist. LEXIS 119627 (E.D. Va. November 10, 2010).*

Defendant had no reasonable expectation of privacy in placement of a GPS on the exterior of his SUV, so Rule 41(b)(4) does not apply, even if it could because state officers put it there in a state investigation. United States v. Smith, 387 Fed. Appx. 918 (11th Cir. 2010):

Although not applicable to a local police investigation conducted without federal involvement, see United States v. Lehder-Rivas, 955 F.2d 1510, 1522 (11th Cir. 1992), Federal Rule of Criminal Procedure 41(b)(4) establishes the federal procedure for obtaining a warrant to install a tracking device. The 2006 Amendment Notes to the rule clarify that “if the officers intend to install or use the device in a constitutionally protected area, they must obtain judicial approval to do so.” Id. “If, on the other hand, the officers intend to install and use the device without implicating any Fourth Amendment rights, there is no need to obtain the warrant.” Id. In United States v. Michael, 645 F.2d 252 (5th Cir. 1981) (en banc), we held that the placement of an electronic tracking device on the exterior of the defendant’s vehicle when it was parked in a public parking lot did not violate his Fourth Amendment rights. Id. at 255-56 (“[W]e hold that the minimal intrusion involved in the attachment of a beeper to Michael’s van, parked in a public place, was justified so as to satisfy any of Michael’s fourth amendment expectation of privacy concerns.”).

Smith’s argument that the installation of the GPS device violated his Fourth Amendment rights fails because the Escalade was parked in a place easily accessible to the public and was reachable from a public thoroughfare. Smith had no reasonable expectation of privacy with respect to the exterior of the vehicle.

Where the defendant consented to a search of his vehicle for drugs, the officer did not exceed the scope of consent by cutting into a package. United States v. Baptiste, 388 Fed. Appx. 876 (11th Cir. 2010):

Permission to search an area for narcotics “may be construed as permission to search any compartment or container within the specified area where narcotics may be found,” but officers may not intentionally damage the places or things to be searched. United States v. Martinez, 949 F.2d 1117, 1119 (11th Cir. 1992). The permissible scope of the search generally includes any area where the item in question may be found, even if the search requires “separate acts of entry or opening,” including “forcing open locked compartments or containers.” Id. at 1120-21 (consent to search warehouse reasonably included consent to search locked trunk of car parked inside it, even though police had to force it open).

The officer did not exceed the scope of Baptiste’s consent by cutting into the package, because it could have contained the drugs for which Baptiste had given consent to search. See Martinez, 949 F.2d at 1119. By that point the dog had already detected the smell of marijuana, and the officer had recognized the wrapped bundles as typical of the packaging often used by drug smugglers. Accordingly, we affirm the denial of Baptiste’s motion to suppress and we affirm his and Volcy’s convictions.

District Court’s pre-Herring order suppressing evidence is reversed and remanded for reconsideration in light of Herring. Defendant was an absconded parolee, and one issue might be whether he had an expectation of privacy where he was hiding out equal to (or less) than what he had in his own place as a parolee. United States v. Julius, 2010 U.S. App. LEXIS 15147 (2d Cir. June 11, 2010)*:

We emphasize that Herring should not serve as an enticement for law enforcement personnel to depart from search procedures which comply with the Fourth Amendment. Rather, Herring requires careful consideration by district courts of whether the goal of deterring violations of the Fourth Amendment outweighs the costs to truth-seeking and law enforcement objectives in each case.

The state filed an unsworn motion for a DNA sample from the defendant, which the trial court granted. The defendant’s motion for a supervisory writ is granted. The state’s unsworn motion for DNA did not say why it needed it, and this is insufficient. State v. Franklin, 46 So. 3d 814 (La. App. 4th Cir. 2010).*

Defendant pleaded guilty to attempted murder. His argument on appeal that his motion to suppress the search of a black bag with drugs in it should have been granted was irrelevant to this case. State v. Bass, 47 So. 3d 541 (La. App. 2d Cir. 2010).*

The defendant’s girlfriend let the police search the defendant’s storage unit. She had the key and the access code. It was reasonable for the police to believe that she had apparent authority to consent, and the trial court credited findings of consent. United States v. Burcham, 388 Fed. Appx. 478 (6th Cir. 2010).*

Ohio holds today (4-3) that a cell phone search requires a warrant without exigent circumstances. Therefore, it was not subject to a search incident. Today’s cell phones are analogous to a computer. State v. Smith, 2009 Ohio 6426, 124 Ohio St. 3d 163, 920 N.E.2d 949 (2009), certiorari denied 131 S. Ct. 102, 178 L. Ed. 2d 242 (U.S. 2010). The Syllabus by the court:

The warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances.

From the opinion:

B. Characterization of a cell phone

{¶ 14} The question in this case is a novel one. In part, whether the warrantless search of a cell phone passes constitutional muster depends upon how a cell phone is characterized because whether a search is determined to be reasonable is always fact-driven. It appears that neither the United States Supreme Court nor any state supreme court has ruled on the warrantless cell phone search. At present, the two leading cases are those discussed by the majority and dissenting opinions of the court of appeals.

. . .

3. Closed Containers

. . .

{¶ 20} We acknowledge that some federal courts have likened electronic devices to closed containers. E.g. United States v. Chan (N.D.Cal. 1993), 830 F.Supp. 531, 534 (finding that a pager is analogous to a closed container), United States v. Ortiz (C.A.7, 1996), 84 F.3d 977, 984 (following Chan in holding that a pager is a closed container), United States v. David (D.Nev.1991), 756 F.Supp. 1385, 1390 (finding a computer memo book “indistinguishable from any other closed container”). Each of these cases, however, fails to consider the Supreme Court’s definition of “container” in Belton, which implies that the container must actually have a physical object within it. Additionally, the pagers and computer memo books of the early and mid 1990s bear little resemblance to the cell phones of today. Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container. We thus hold that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.

4. Legitimate Expectation of Privacy

{¶ 21} Since cell phones are not closed containers, the question becomes how they should be classified. Given the continuing rapid advancements in cell phone technology, we acknowledge that there are legitimate concerns regarding the effect of allowing warrantless searches of cell phones, especially so-called smart phones, which allow for high-speed Internet access and are capable of storing tremendous amounts of private data.5 While it is apparent from the record that Smith’s cell phone could not be called a smart phone with advanced technological capability, it is clear from the record that Smith’s cell phone had phone, text messaging, and camera capabilities. While the dissent argues that Smith’s phone is merely a “conventional one,” we note that in today’s advanced technological age many “standard” cell phones include a variety of features above and beyond the ability to place phone calls. Indeed, like Smith’s phone, many cell phones give users the ability to send text messages and take pictures. Other modern “standard” cell phones can also store and transfer data and allow users to connect to the Internet. Because basic cell phones in today’s world have a wide variety of possible functions, it would not be helpful to create a rule that requires officers to discern the capabilities of a cell phone before acting accordingly.

5. For detailed discussion of the capabilities of modern cell phones and potential Fourth Amendment concerns, see generally Gershowitz, The iPhone Meets the Fourth Amendment (2008), 56 UCLA L.Rev. 27, and Stillwagon, Note, Bringing an End to Warrantless Cell Phone Searches (2008), 42 Ga.L.Rev. 1165.

{¶ 22} “Modern understandings of the Fourth Amendment recognize that it serves to protect an individual’s subjective expectation of privacy if that expectation is reasonable and justifiable.” State v. Buzzard, 112 Ohio St.3d 451, 2007-Ohio-373, 860 N.E.2d 1006, ¶ 14, citing Rakas v. Illinois (1978), 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387, and Katz v. United States (1967), 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (Harlan, J., concurring). Given their unique nature as multifunctional tools, cell phones defy easy categorization. On one hand, they contain digital address books very much akin to traditional address books carried on the person, which are entitled to a lower expectation of privacy in a search incident to an arrest. On the other hand, they have the ability to transmit large amounts of data in various forms, likening them to laptop computers, which are entitled to a higher expectation of privacy.

{¶ 23} But cell phones are neither address books nor laptop computers. They are more intricate and multifunctional than traditional address books, yet they are still, in essence, phones, which makes them distinguishable from laptop computers. Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain. Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.

Finally, a court recognizing what had become obvious. I posted to Prof. Gershowitz’s article nearly two years ago here.

News: Columbus Dispatch

Walking late at night in an area known for burglaries, and defendant’s grabbing at his waist as the officer drove by was not reasonable suspicion. Overhead lights and a direction to “come over here” is a seizure. Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010) (6-3):

Neither time of day nor level of criminal activity in an area are suspicious in and of themselves; the two are merely factors to be considered in making a determination of reasonable suspicion. Neither fact proves that the suspect is engaged in any sort of criminal offense. In order for these facts to affect the assessment of the suspect’s actions, the surroundings must raise a suspicion that the particular person is engaged in illegal behavior. Griffin did not offer any testimony that might have raised his suspicion that the appellant was engaged in criminal activity before he approached the appellant and smelled marihuana on him. We find no other indicia of reasonable suspicion on the record before us.

Defendant’s wife consented to the search. She consented because (1) she didn’t think anything would be found and (2) she was told that they would have her leave in the cold while the officers procured a warrant. She had been arrested before, and it was voluntary. United States v. Short, 387 Fed. Appx. 308 (4th Cir. 2010).*

Reading Miranda warnings does not turn a consensual stop into a seizure. Caldwell v. State, 41 So. 3d 188 (Fla. 2010), approving Caldwell v. State, 985 So. 2d 602 (Fla. 2d DCA 2008)* and rejecting Raysor v. State, 795 So. 2d 1071 (Fla. 4th DCA 2001).*

Court declines to decide whether a field sobriety test is a seizure since officer had probable cause at the time of the seizure. [Like you can refuse or get back in your car and drive off? You get arrested if you refuse or drive off.] “Based upon the indicia of intoxication, Officer Kirby had probable cause to arrest defendant for OVI when he advised defendant that he would arrest him if he refused to do the walk-and-turn test.” City of Columbus v. Bickis, 2010 Ohio 3208, 2010 Ohio App. LEXIS 2739 (10th Dist. July 8, 2010).*

Defendant sued his prison officials for subjecting his mother to ion scanning for drugs before her visits rather than strip searching her as a First Amendment free association claim. He did not have standing for such a claim. Johnson v. Miller, 387 Fed. Appx. 832 (10th Cir. 2010)* (I’m sure she’d rather be subjected to an ion scan rather than a strip search.)

A Maine lobster search by state fishery officers in “international waters” but in the federal “exclusive economic zone” was valid. Officers did not need probable cause to boat and search. State v. Thomas, 2010 ME 116, 8 A.3d 638 (2010):

[*P3] On July 12, 2007, several Maine marine patrol officers located the Blue Water approximately thirty-five miles from Matinicus Island. On that day, the Blue Water was rigged for groundfishing. Thomas and the marine patrol officers were familiar with each other, and Thomas was unhappy that the officers had arrived at his boat. The officers asked to board the Blue Water, and Thomas initially refused them permission because he was fishing in federal waters beyond what he perceived to be their law enforcement jurisdiction. When the officers invoked their federal authority, Thomas allowed them to board, believing that he would be “taken into custody immediately” if he refused a federal inspection. [n. 5: Maine marine patrol officers are authorized by the federal government to exercise federal enforcement authority in federal waters.]

[*P4] Once aboard the Blue Water, the officers examined plastic totes on the deck of the Blue Water and found seventy-eight lobsters; twenty-four of the lobsters were oversize. A number of them were banded in the totes. Maine law establishes a maximum length for lobsters that may be kept. 12 M.R.S. § 6431(1). Maine law also prohibits taking lobsters by any method other than conventional lobster traps. 12 M.R.S. § 6432(1). Thomas was charged with violating both statutes. …

[*P6] The Blue Water was in the federal exclusive economic zone (EEZ) at the time of the search. The EEZ extends two hundred nautical miles from where the territorial sea is measured, and “the inner boundary of that zone is a line coterminous with the seaward boundary of each of the coastal States.” 16 U.S.C.S. § 1802(11) (LexisNexis 1999); see also Proclamation No. 5030, 48 Fed. Reg. 10,605 (Mar. 14, 1983).

[*P7] The Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.S. §§ 1801-1884 (LexisNexis 1999 & Supp. 2010), applies in the EEZ. …

[*P9] The court denied Thomas’s motion to suppress, finding that the officers had an independent legal basis to search the Blue Water, because Maine law requires a person licensed under the marine resource laws “to submit to inspection and search for violations related to the licensed activities by a marine patrol officer.” 12 M.R.S. § 6306(1) (2007). The court held that section 6306 applied to the Blue Water in the EEZ because the Blue Water was a vessel registered under the laws of Maine. See 16 U.S.C.S. § 1856(a)(3). Therefore, neither Thomas’s consent nor probable cause was necessary to allow the search.

Defendant listed his residence for sale. He had been suspected of possessing firearms. Officers contacted the real estate agent and used that for access to the house to make a walk through. Guns were seen in a gun case. The defendant waived his expectation of privacy as to that which could be easily seen by permitting the real estate agent to bring people in to look around. This plain view led to a search warrant being issued for the residence. Redmond v. Commonwealth, 57 Va. App. 254, 701 S.E.2d 81 (2010):

We find the analysis of the Lucatero and Ferrari decisions compelling. In this instance, Flagg accepted the offer to enter and view the home at Middle Road when he contacted the real estate agent and indicated interest in the property. There was no evidence Flagg or Clutz made any representation to the realtor regarding their reason for wanting to tour the house. Moreover, the police officers’ actions while inside the property did not exceed what one would expect of a prospective purchaser. Flagg and Clutz did not conduct an exhaustive search of the home when they visited it with the realtor. The firearms, ammunition, and pawn ticket all were in the officers’ plain view and were readily observable on August 3, 2008. Thus, the officers’ actions violated no reasonable expectation of privacy possessed by appellant.

Mere allegations that the police ransacked defendant’s house during execution of a search warrant did not rise to the level of making the search unreasonable. They were looking for specific stuff identified in the warrant and there was no showing the warrant was exceeded. United States v. Fisher, 2011 U.S. Dist. LEXIS 5837 (E.D. N.Y. January 21, 2011):

Finally, Fisher argues that the Court should suppress all of the evidence seized from his Residence because the Agents ransacked the Residence and confiscated non-contraband items, which constituted an unreasonable search. However, Fisher fails to identify how any of the locations searched were outside the scope of the warrant, nor did Fisher identify any items that lacked evidentiary value that were taken and not subsequently returned. In addition, Fisher only asserts, without any challenges to the particularity of the warrant, that it authorized a “fishing expedition.” A warrant is sufficiently particular when it “enable[s] the executing officer to ascertain and identify with reasonable certainty those items that the magistrate has authorized him to seize.” United States v. George, 975 F.2d 72, 75 (2d Cir. 1992). Here, the warrant identified the Residence, included a specific list of items to be seized, and by its terms expressly permitted the search of closed or locked containers. The list provides enough detail to properly direct the officers executing the warrant and prevent “exploratory rummaging.” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 2038, 29 L. Ed. 2d 564 (1971)

Furthermore, the warrant read in conjunction with the supporting Biddiscombe Affidavit clearly identifies that the listed items are not general, but rather specifically identified as fruits and instrumentalities of a narcotics trafficking conspiracy. (See Gov. Br., Ex. 3, ¶¶26-31 (discussing what evidence is commonly found at the residences of drug traffickers and how that evidence relates to narcotics trafficking).) See United States v. Johnson, 108 F.3d 1370 (Table) [published in full-text format at 1997 U.S. App. LEXIS 5434], 1997 WL 136332, at *3 (2d Cir. 1997) (holding that the investigator’s affidavit was sufficient to establish that the items listed on the search warrant were related to the alleged fraud). Thus, the Court finds that the search of the Residence was not unreasonable and denies the motion to suppress on this ground.

The trial court erred in not ordering unsealing the search warrant materials in this case because the state did not show that the CI needed to be protected. The defendant was not seeking disclosure of the CI, just the basis for the search warrant, which he was entitled to know. State v. Lewis, 2011 Ohio 199, 2011 Ohio App. LEXIS 176 (5th Dist. January 18, 2011):

[*P21] “The Court believes that the Fourth Amendment right to be free of unreasonable searches and seizures includes the right to examine the affidavit that supports a warrant after the search has been conducted and a return has been filed with the Clerk of Court pursuant to Fed.R.Crim.P. 41. It is not, however, an unqualified right. As is true with other constitutional rights it may be overridden when it is shown that precluding access is ‘essential to preserve higher values and is narrowly tailored to serve that interest.’ Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984). Thus, the right of access may be denied only where the government shows (1) that a compelling governmental interest requires the materials be kept under seal and (2) there is no less restrictive means, such as redaction, available. Clearly, the fact that there is an on-going criminal investigation could provide a compelling governmental interest. Cf. Baltimore Sun, 886 F.2d at 64. Other examples of compelling governmental interests which might, in an appropriate case, justify the extraordinary act of sealing warrant materials after the underlying search has been conducted include the presence of information in a supporting affidavit gleaned from a court ordered wire-tap that has yet to be terminated, or information that could reveal the identity of confidential informants whose lives would be endangered. Sealing may be appropriate under such circumstances if redaction is not feasible.” In re Search Warrants Issued August 29, 1994 (S.D. Ohio 1995), 889 F. Supp. 296, 299. Accord, In re Search Warrants Issued on April, 26, 2004 (D. Maryland 2004), 353 F. Supp.2d 584; United States v. Oliver (4th Cir. 2000), 208 F.3d 211.

[*P22] In the instant case, the trial court did not consider whether the state had a compelling governmental interest in protecting the identity of the CI sufficient to override appellant’s right to the affidavit. Further, the trial court did not consider less restrictive means, such as redacting the name of the CI, despite the state’s representation at the hearing that redaction was a possibility: …

[*P24] The trial court erred in denying the motion to unseal the affidavit on the basis that appellant had not demonstrated a need for the identity of the CI rather than determining whether the State had shown a compelling interest in protecting the identity of the CI. We cannot find as a matter of law that the State has shown a compelling interest in protecting the identity of the CI, as the record reflects merely a general statement that police are concerned about the safety of the CI without any specific details underlying that concern from which we can determine whether such concern rises to the level of a compelling state interest. Further, without the affidavit we cannot determine if redaction of information which could lead to disclosure of the identity of the CI is possible.

Privacy issues hover over police drone use by Peter Finn in today’s Washington Post:

The suspect’s house, just west of this city, sat on a hilltop at the end of a steep, exposed driveway. Agents with the Texas Department of Public Safety believed the man inside had a large stash of drugs and a cache of weapons, including high-caliber rifles.

As dawn broke, a SWAT team waiting to execute a search warrant wanted a last-minute aerial sweep of the property, in part to check for unseen dangers. But there was a problem: The department’s aircraft section feared that if it put up a helicopter, the suspect might try to shoot it down.

So the Texas agents did what no state or local law enforcement agency had done before in a high-risk operation: They launched a drone. A bird-size device called a Wasp floated hundreds of feet into the sky and instantly beamed live video to agents on the ground. The SWAT team stormed the house and arrested the suspect.

Defendant’s claim that the IRS acted in bad faith to acquire information via a tax audit when it was planning to prosecute him did not rise to a Fourth [or Fifth] Amendment violation. United States v. Baisden, 2010 U.S. Dist. LEXIS 140012 (D. Neb. December 17, 2010):

There is no showing Baisden was detained, mandated or forced to attend any meetings with the IRS or to produce documents. Although “a consent search is unreasonable under the Fourth Amendment if the consent was induced by deceit, trickery or misrepresentation of the Internal Revenue agent,” (U.S. v. Powell, 835 F.2d 1095, 1098 (5th Cir. 1988)), the defendant has made no showing of IRS misconduct. Baisden consented to cooperate with the IRS by producing the documents requested by that agency. His Fourth Amendment rights were not violated. See, United States v. Irvine, 699 F.2d 43, 46 (1st Cir.1983) (records obtained during an IRS interview were not suppressed under the Fourth Amendment where the agent made no affirmative misrepresentations); United States v. Sclafani, 265 F.2d 408, 414-415 (2d Cir.1959) (holding that to obtain valid consent under the Fourth Amendment to review records for a civil audit, the taxpayer need not be told the government may commence criminal rather than civil proceedings with the records disclosed); U.S. v. Kaatz, 705 F.2d 1237, 1243 (10th Cir. 1983) (holding suppression of evidence obtained during a civil audit was not warranted where nothing in the record showed the defendants were misled by anything the IRS agent did or said. “Failure to warn that a criminal investigation may ensue is not fraud, deceit, or trickery.”).

Defendant was legally stopped, so his flight from the car was an abandonment [wouldn’t it be even if he was illegally stopped?]. The gun was seen in plain view anyway. United States v. Gaines, 2011 U.S. Dist. LEXIS 5133 (S.D. Ga. January 19, 2011).*

Consent is a question of fact, and the only evidence is the government’s and it prevails. The argument to the USDJ that the witnesses just should not have been believed is unavailing. United States v. Perry, 2010 U.S. Dist. LEXIS 140000 (W.D. Tenn. November 23, 2010),* adopted 2011 U.S. Dist. LEXIS 5408 (W.D. Tenn. January 19, 2011).*

Defendant’s bus encounter was not consensual because the officer was big and standing over him. United States v. Aquino, 2010 U.S. Dist. LEXIS 139934 (D. Kan. November 30, 2010)*:

Although the questioning did not require Miranda warnings, no reasonable person would feel free to disregard the officer and go about his business. Aquino was seated in a bus with Investigator Lutter, who stands 6’6″ and weighs more than 250 pounds, standing over him asking him questions while another officer, Investigator Scott, kneeled on an empty seat between Aquino and the front door of the bus (TR. 42-43). Aquino answered Investigator Lutter’s questions, produced his bus ticket and identification, and “complied” with Investigator Lutter’s request to step off the bus and identify his luggage. In the presence of at least two officers, Aquino “complied” with Investigator Lutter’s request to search his luggage. In response to Investigator Lutter’s request to conduct a pat search of Aquino’s person, Aquino told Investigator Lutter that he did not want Investigator to touch him. Investigator Lutter continued to question Aquino and requested that Aquino open his coat and hold his clothing close to his body to determine if anything was hidden under his clothing. No reasonable person would have believed that he was free to leave without the officer’s permission, or to end the conversation and refuse to answer the officer’s questions and ignore the officer’s requests. The encounter was neither voluntary nor consensual.

Automation and the Fourth Amendment by Matthew Tokson in 96 U.Iowa L. Rev. 581 (2010). Abstract:

The Supreme Court has held that an individual relinquishes any Fourth Amendment interest in information that he or she voluntarily discloses to a third party. Known as the “Third Party Doctrine,” this controversial rule is increasingly problematic in an age where a large proportion of personal communications and transactions are carried out over the Internet. Internet users expose virtually all of the information they generate online—e-mails, web-surfing histories, search terms, and more—to online service providers. As such, many scholars have assumed that Internet information will be unprotected by the Fourth Amendment.

Yet the information disclosed to these online third parties is generally not exposed to human beings at all; rather, it is processed entirely by automated equipment. Neither courts nor scholars have squarely addressed whether disclosure to these automated third parties is sufficient to eliminate Fourth Amendment protection. However, courts have, without discussing the issue, already begun to treat automated Internet systems as the equivalent of human beings.

This Article examines how this emerging body of law threatens to deprive personal information on the Internet of effective legal protection. It offers a novel theoretical and legal analysis of information disclosure to automated Internet systems and concludes that individuals whose information is exposed only to automated systems incur no cognizable loss of privacy. It then examines available data about the behavior and privacy expectations of Internet users that reveals that they sharply distinguish between disclosure to humans and disclosure to automated systems, even if courts thus far have not. These relatively intuitive concepts have been widely overlooked, and they have potentially enormous implications in several areas of law and theory. This Article explores these implications, challenging existing privacy market theories and conceptions of user behavior, and proposing a new model of Fourth Amendment privacy on the Internet.

Hat tip to PogoWasRight.

The DC jail will soon start fingerprinting every visitor for warrants, according to the Washington Examiner.

Orin Kerr on Volokh Conspiracy: “Supreme Court Assumes (Without Deciding) That Constitutional Right to ‘Informational Privacy’ Exists in Reversing Ninth Circuit in NASA v. Nelson”, referring to NASA v. Nelson, on SCOTUSBlog.