A protective sweep does not require the officers be on the premises with an arrest warrant. Here, officers were let inside, but one person ran up the stairs and the officer gave chase. The person was rummaging in a bag in a closet with a gun in it. The entry into the bedroom was still reasonable under Buie. United States v. Cordova, 2010 U.S. Dist. LEXIS 133720 (N.D. Ga. June 23, 2010), adopted United States v. Cordova, 2010 Dist. LEXIS 133752 (N.D. Ga. December 17, 2010):

The Second Circuit also noted in Miller that the majority of other courts that have addressed this issue have held that the protective sweep doctrine set forth in Buie is also applicable to other situations in which officers are lawfully in the suspect’s home, even when the officers are not present in the home for the purpose of executing an arrest warrant. Miller, 430 F.3d at 99; see United States v. Martins, 413 F.3d 139, 150 (1st Cir. 2005) (“police who have lawfully entered a residence possess the same right to conduct a protective sweep whether an arrest warrant, a search warrant, or the existence of exigent circumstances prompts their entry.”); Leaf v. Shelnutt, 400 F.3d 1070, 1086-88 (7th Cir. 2005) (“[I]t was not necessary for the officers to have made an arrest in order for their search of the apartment to be justified; the only question is whether the search was objectively reasonable.”); United States v. Taylor, 248 F.3d 506, 513 (6th Cir. 2001) (“[T]he principle enunciated in Buie with regard to officers making an arrest—that the police may conduct a limited protective sweep to ensure the safety of those officers—applies with equal force to an officer left behind to secure the premises while a warrant to search those premises is obtained.”); United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir. 1993) (officers permitted to conduct protective sweep following consent entry); United States v. Patrick, 959 F.2d 991, 996-97, 294 U.S. App. D.C. 393 (D.C. Cir. 1992) (“Once the police were lawfully on the premises, they were authorized to conduct a protective sweep based on their reasonable belief that one of its inhabitants was trafficking in narcotics.”). But see United States v. Davis, 290 F.3d 1239, 1242 n.4 (10th Cir. 2002) (reading Buie narrowly to apply only in the context of an arrest); United States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2000) (same).

The Fifth Circuit’s decision in United States v. Gould, 364 F.3d 578 (5th Cir. 2004) (en banc) is instructive[, too].

ABAJ: Feds Must Pay Islamic Charity Lawyers and Their Counsel $2.5M in Warrantless Wiretap Case, by Martha Neil:

The chief federal district court judge in San Francisco has ordered the federal government to pay more than $2.5 million, primarily in attorney’s fees, concerning its warrantless wiretap, under an executive surveillance program authorized by President George W. Bush, of two Washington, D.C., lawyers for a now-shuttered Islamic charity in Oregon.

Judge Vaughan Walker yesterday awarded $20,400 each in damages to attorneys Asim Ghafoor and Wendell Belew, and nothing to the charity, Al-Haramain Islamic Foundation, according to the New York Times (reg. req.) and the SF Appeal.

WMATA bag searches make transit less safe, not more:

This morning, the Metro Transit Police began conducting the system’s first random bag checks. These inspections are couched in the language of security, but they actually make the system less safe.

Passengers boarding during the morning rush at Braddock Road and College Park faced these screenings. The Washington Post’s Dr. Gridlock reported that one man’s check took 8 minutes, and yet nothing threatening was found.

People have been objecting to these random bag checks on a variety of grounds. The ACLU says that they infringe on civil liberties. Dr. Gridlock disputed the argument that they are a “necessary evil,” writing that “To be a necessary evil, a thing must be both necessary and evil,” and that this policy is only the latter, not the former. Even Congresswoman Eleanor Holmes Norton thinks they’re ineffective.

Randolph does not require that the target of the search be asked for consent first. In this case, appellant was in the shower when the consent was sought from the co-tenant. Beall v. State, 237 S.W.3d 841 (Tex. App.—Ft. Worth 2007).*

Like a scene from “COPS,” a 911 call comes from an apartment, and the police arrive, and the female who called them points to marijuana in the apartment, and everybody is validly arrested and a further search warrant is validly obtained. Juarez v. State, 965 So. 2d 1061 (Miss. 2007).*

Raising on appeal failure to move to suppress without a record on which to decide it precluded review. In any event, it would not have affected the outcome. State v. Hohvart, 2007 Ohio 5349, 2007 Ohio App. LEXIS 4714 (7th Dist. September 21, 2007).*

Defendant’s driving a vehicle with fictitious tags justified his stop, so defense counsel was not ineffective for not moving to suppress the arrest as based on an anonymous tip. State v. Brown, 115 Ohio St. 3d 55, 2007 Ohio 4837, 873 N.E.2d 858(October 3, 2007).*

Defendant’s locked car was subjected to a search incident that would be invalid under Gant, but the court holds the good faith exception applies to a pre-Gant search incident. State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97 (2010), affg 2008 WI App 131, 313 Wis. 2d 767, 758 N.W.2d 463 (Ct. App. 2008):

[*P44] We can find no principled way to distinguish Krull or Ward from this case. Both this court and the United States Supreme Court have determined that the retroactivity rule does not bar application of the good faith exception in situations where police act in objectively reasonable reliance on settled (albeit subsequently overruled) law. As we have already explained, the officers were following the clear and settled precedent of this court; this is exactly what officers should do. Application of the exclusionary rule would have absolutely no deterrent effect on officer misconduct, while at the same time coming with the cost of allowing evidence of wrongdoing to be excluded. In short, under Krull or Ward, it is clear that applying the exclusionary rule would be an inappropriate remedy for the constitutional violations here.

How the court could reasonably conclude that the search incident doctrine applies to a locked car when the defendant is locked in a police car escapes me before Gant, and that kind of holding was what led to Gant. That isn’t good faith.

Two affidavits for search warrants against the defendant can be read together to support each other. Here, officers had probable cause to believe that defendant was a drug dealer, and they got a warrant to install a GPS on a package for him to see where it would go. When the package stopped moving, that information was used to get a search warrant for the place. United States v. Abdul-Ganui, 2010 U.S. Dist. LEXIS 131993 (W.D. Pa. December 14, 2010):

Other cases have followed these principles and permitted “probable cause to be determined from separate affidavits filed to obtain several warrants in the same criminal investigation.” State v. Smith, 836 S.W.2d 137, 140 (Tenn. Crim. App. 1992). In Smith, two separate affidavits were simultaneously presented to a magistrate judge in support of two different warrants, one warrant authorizing the search of the defendant’s residence and the other authorizing procurement of a blood sample. The court rejected the argument that the affidavit in support of the first warrant could not be used to determine whether probable cause existed for the second. It stated that “it would be hypertechnical for the [magistrate judge] not to act upon an entire picture disclosed to him in interrelated affidavits presented to him on the same day.” Id.; accord State v. Kalai, 56 Haw. 366, 537 P.2d 8, 10 (Haw. 1975) (“Where two closely related affidavits, referring to the same individual and the same criminal charge, are presented to the issuing magistrate simultaneously, he may consider both for the purpose of ascertaining the existence of probable cause.”); United States v. Fogarty, 663 F.2d 928, 929-30 (9th Cir. 1981) (A magistrate judge is not required to read an affidavit with “tunnel vision” and thus is not limited to the four corners of a single affidavit where “facts are presented simultaneously in two related affidavits seeking two warrants.”).

Similarly, these principles have been applied to scenarios where the affidavits were not presented simultaneously. In Kaiser v. Lief, the United States Court of Appeals for the Tenth Circuit held that a magistrate judge may rely on facts included in two separate affidavits presented a day apart. In upholding the search, the court recognized that while the two affidavits were not presented to the magistrate judge on the same day, “all of the information on which the magistrate relied was included in sworn documents.” 874 F.2d 732, 735 (10th Cir. 1989). In United States v. Manufacturers National Bank of Detroit, Livernois-Lyndon Streets, Safety Deposit Box # 127, Detroit, Michigan, two separate affidavits were presented to a magistrate judge within a day of each other by an officer seeking warrants to search the defendant’s residence and security deposit box. The Sixth Circuit held that the issuing magistrate judge was entitled to consider both affidavits in reaching a probable cause finding, and opined that it “would needlessly restrict the discretion of a magistrate to hold that two affidavits filed so close in time and referring to a single criminal investigation which was still continuing could not be considered together in determining whether to authorize a further search.” 536 F.2d 699, 702 (6th Cir. 1976); accord United States v. Markis, 352 F.2d 860, 864 (2d Cir. 1965) (upholding magistrate judge’s probable cause determination based on affidavits relating to the same person and the same offense presented four days apart), vacated on other grounds, Markis v. United States, 387 U.S. 425, 87 S. Ct. 1709, 18 L. Ed. 2d 864 (1967); Cf. Commonwealth of Massachusetts v. Saleh, 396 Mass. 406, 486 N.E.2d 706, 709 (Mass. 1985) (observing in upholding probable cause determination based on two separate affidavits that “[e]ach affidavit contributes to the total picture from which the magistrate determines probable cause.”).

So, how hard is it to get a search warrant to install a GPS? Not that hard.

The Fourth Amendment and the Brave New World of Online Social Networking by Nathan Petrashek, 93 Marq. L. Rev. 1495 (2010):

No phenomenon is more demonstrative of the brave new technological world than online social networking. Each day, millions of Americans log on to social networking web sites, whose astonishingly rapid user growth has turned many into multi-billion-dollar marketing machines. But wholly aside from their business impact, these web services perform important social functions by allowing users to meet or remain in touch with others, share ideas, start organizations, and generally contribute to a vibrant and open society.

Left unstated by Justice Thomas is his notion of how the thorny legal issues surrounding this new communicative forum should be resolved. Existing Fourth Amendment doctrine is ill-equipped to handle the convergence of the public and the private; generally, one loses all privacy expectations in what is shared with the world. Though this tension between constitutional doctrine and social practice has yet to play out in the courts, it may soon do so.

Do Not Disturb: Fourth Amendment Expectations of Privacy in Hotel Rooms by Jason C. Miller on SSRN:

Do Not Disturb addresses the sometimes thorny issue of when occupants of a hotel room have standing under the Fourth Amendment to object to an illegal search of the room. This becomes particularly problematic when the occupant is not a typical hotel guest or violates a hotel policy. The Tenth Circuit requires an occupant to prove that he or she is a registered guest of the hotel, while the Sixth Circuit holds that invalid registration is the hotel’s concern alone.

Although hotel rooms pose interesting Fourth Amendment problems, such as invalid registrations, fake names, guests of guests, and guests who stay beyond the rental period, this paper argues that the expectation of privacy in hotels should be measured in the same way that the Fourth Amendment deals with other types of residences and proposes that courts universally apply a rule requiring the hotel to act first to terminate the expectation of privacy of a guest who violates hotel policy.

The SSRN posting does not show where else it is being published.

See the Billy the Kid pardon site on the New Mexico state government website.

After two weeks of trial, my case goes to the jury today, and I’ll get caught up this weekend.

I hate being days behind, because now it will take two full days to get caught up. At least I have something to do through the Christmas break of the courts.

The Supreme Court and technology–are the Justices ready for 21st century cases? More and more technology cases are heading to the Supreme Court. Do the Justices understand technology well enough to render accurate decisions in highly technical cases? by Ryan Fraas on ITWorld.com.

No. And we are a decade into the Twenty-First Century. Hopefully, the law clerks are, but they don’t ask the questions at oral argument.

The Happy Fourth Amendment: History and the People’s Quest for Constitutional Meaning by Andrew E. Taslitz of Howard University School of Law, Texas Tech Law Review, Vol. 43, 2010. The Abstract on SSRN:

Much debate about the role of history in constitutional interpretation centers on the difference between originalism and non-originalism. Yet most writers agree that history must play some role. If it does, for what should we be looking when we mine history? Originalists say, “for the original intent of the Framers or the original meaning of the Founding moment” or some variation. Non-originalists are less clear. Starting from a non-originalist perspective, this article argues that one important thing to mine history for is lessons about what promotes individuals’ and the People’s happiness. The article considers the implications for this stance for Fourth Amendment interpretation. The article first defines a “People” by its shared commitments, finding the American People thus to be defined in part by the “pursuit of happiness” as stated in the Declaration of Independence. The piece argues that the Declaration has an appropriate role to play in interpreting the Constitution. Next, the piece reviews relevant historical meanings of “happiness” and its pursuit and finds them consistent with modern social science on these topics. Specifically, the article finds that happiness’s pursuit for individuals and the American People partly requires that citizens, groups, and the People as a whole have an effective voice in government and that the state also work to promote certain types of equality (though not income equality). The article argues that these happiness-promoting functions are particularly central to history’s role in interpreting the Fourth Amendment, concluding with three examples focusing on racial and viewpoint minorities and their interactions with the police. The article was written as part of a symposium panel on the role of history in understanding the Fourth Amendment’s meaning.

The SWAT Team Would Like to See Your Alcohol Permit / How police use regulatory inspections to conduct warrantless searches by Rodney Balko.

In August a team of heavily armed Orange County, Florida, sheriff’s deputies raided several black- and Hispanic-owned barbershops in the Orlando area. There were more raids in September and October. According to the Orlando Sentinel, barbers and customers were held at gunpoint, some in handcuffs, while police turned the shops upside down. A total of nine shops were raided, and 37 people were arrested.

By all appearances, these raids were drug sweeps. Shop owners told the Sentinel police asked where they were hiding illegal drugs and weapons. But in the end, 34 of the 37 arrests were for “barbering without a licence,” a misdemeanor for which only three people have ever served jail time in Florida. Two arrests were for misdemeanor marijuana possession. Just one person was arrested on felony drug and weapon charges.

See this posting from 2009, on SWAT teams executing administrative warrants.

I probably will post something tomorrow.

There is no Fourth Amendment requirement that the statement from the officer in support of a search warrant be actually recorded. Rule 41(d)(2) requires a court reporter or “suitable recording device,” but the Fourth Amendment does mention how. And, this was a state court warrant. Here, the officers testified consistently concerning what was given the issuing judge. Also, the record showed who the source of information was and the issuing magistrate could credit it. There was also good faith reliance on the warrant by the officers, and it was not so “facially deficient” that it could not be relied upon. United States v. Patten, 2010 U.S. Dist. LEXIS 130730 (N.D. Iowa December 9, 2010).* [Query: How was recording done in 1789? Does common availability of recording by affidavit or actual recording change this? Was there a court reporter available at that time?]

The video of the stop showed that defendant’s consent was valid, and that he was freely moving around the scene of the stop. The officers were not required to tell the defendant he was free to leave, but he expected to get a ride with the tow truck driver and leave the scene. United States v. Foerster, 2010 U.S. Dist. LEXIS 130623 (D. Vt. December 9, 2010).*

“Even without considering the display of religious and patriotic symbols, Gonzalez’s prior drug arrest, excessive nervousness, and the fact that he was traveling on a known drug corridor, provided [Officer] Dupree with reasonable suspicion to extend the search.” The video of the stop was credited. United States v. Gonzalez-Hernandez, 2010 U.S. Dist. LEXIS 130558 (W.D. La. November 23, 2010).*

“The officers activated their lights and sirens and pulled the Crown Victoria over for a purported traffic stop.” Defendant made furtive movements. The court does not find at all credible the officer’s testimony that he could see the crack in defendant’s windshield as a basis for the traffic stop in this case, and the stop is suppressed. United States v. Gaines, 2010 U.S. Dist. LEXIS 130111 (D. Md. December 8, 2010)*:

In addition to those facts discussed above, this Court will now highlight several further findings of fact relevant to the analysis of this case. First, it is uncontested that there is indeed a crack in right portion of the windshield of the Crown Victoria. However, as will be discussed in more detail below, this Court does not believe it was possible for the police officers to see the crack in the windshield as they have described it. Furthermore, it is similarly uncontested that Officer Shetterly discovered the gun in the Defendant’s waistband before Defendant made any evasive or assaultive movements towards the officers. It was only after yelling “GUN” that the Defendant became violent. The legal effect of this last fact will be discussed in the following sections.

“When a search warrant is reviewed for a sufficiency-of-probable cause determination, its supporting affidavit must be read in its entirety and construed in a common sense and nontechnical manner.” There was clearly a “fair probability” defendant was involved in sexual exploitation of a child, which defendant does not challenge; only nexus for warrants for his Internet accounts. That argument also fails, so the good faith exception saves this search, too. United States v. Noyes, 2010 U.S. Dist. LEXIS 130041 (W.D. Pa. December 8, 2010).*

From Politics Daily: C-SPAN Supreme Court Series: Search and Seizure and the ‘Exclusionary’ Rule. C-SPAN Radio has been playing oral arguments of famous Supreme Court cases. Today:

The latest tape in the series, focusing on Mapp v. Ohio, an important evidence exclusion case from 1961, will be heard on C-SPAN Radio at 6 p.m. ET on Saturday, Dec. 11.

The father of a U.S. citizen whose son is overseas exhorting others to kill Americans and whose son is allegedly on a government “kill or capture” list has no standing to sue for his son’s Fourth and Fifth Amendment rights. Al-Aulaqi v. Obama, 10-1469 (JDB) (D. D.C. December 7, 2010).

NTTimes today: Suit Over Killing Order in Terror Case Is Dismissed:

A federal judge on Tuesday threw out a lawsuit aimed at preventing the United States from targeting U.S.-born anti-American cleric Anwar al-Awlaki for death.

U.S. District Judge John Bates said in a written opinion that al-Awlaki’s father does not have the authority to sue to stop the United States from killing his son. But Bates also said the “unique and extraordinary case” raises serious issues about whether the United States can plan to kill one of its own citizens without judicial review.

Al-Awlaki has urged Muslims to kill Americans. He also has been linked to last year’s shooting at Fort Hood, Texas, and the attempted bombing of a U.S.-bound flight last Christmas. He is believed to be hiding in Yemen and has issued videos online repeatedly calling for Muslims to kill Americans.

Washington Post: Judge in D.C. tosses suit against Obama administration about cleric Aulaqi.

On Wired’s Threat Level: Feds Warrantlessly Tracking Americans’ Credit Cards in Real Time:

Federal law enforcement agencies have been tracking Americans in real-time using credit cards, loyalty cards and travel reservations without getting a court order, a new document released under a government sunshine request shows.

The document, obtained by security researcher Christopher Soghoian, explains how so-called “Hotwatch” orders allow for real-time tracking of individuals in a criminal investigation via credit card companies, rental car agencies, calling cards, and even grocery store loyalty programs. The revelation sheds a little more light on the Justice Department’s increasing power and willingness to surveil Americans with little to no judicial or Congressional oversight.

For credit cards, agents can get real-time information on a person’s purchases by writing their own subpoena, followed up by a order from a judge that the surveillance not be disclosed. Agents can also go the traditional route — going to a judge, proving probable cause and getting a search warrant — which means the target will eventually be notified they were spied on.