Defendant was under investigation for a violation of the Clean Water Act, and the government obtained from the USMJ an order permitting entry. The order itself is not unreasonable and does not violate the Fourth Amendment just because defendant is under investigation. United States v. Acquest Wehrle LLC, 2010 U.S. Dist. LEXIS 42789 (W.D. N.Y. April 30, 2010).*

Defendant’s denial of ownership of stolen credit cards and a gun in the car was an abandonment and a waiver of standing at the time of arrest. “Hernandez claims it would be illogical for the Court not to find standing when the government has charged him with possession of a firearm based on the firearm found in the vehicle. While it does seem somewhat illogical, the Court cannot create standing where none exists.” United States v. Hernandez, 2010 U.S. Dist. LEXIS 42922 (D. Idaho May 3, 2010).*

Use of the “two second rule of thumb” that a vehicle was following too close does not make the stop unreasonable. United States v. Hunter, 2010 U.S. Dist. LEXIS 42865 (D. Kan. April 30, 2010).*

Nexus to the home for drugs can be shown by inference. Here, defendant went to his house before going to the location for a drug sale, and that was enough to show nexus, relying on State v. Saine, 297 S.W.3d 199 (Tenn. 2009). State v. Summers, 2010 Tenn. Crim. App. LEXIS 353 (April 28, 2010).*

Defendant’s blood test at the hospital was not unreasonable and not a violation of the Fourth Amendment. He also did not raise it at trial. State v. Asbury, 2010 Tenn. Crim. App. LEXIS 354 (April 30, 2010).*

Defendant’s movements were the articulable basis for his frisk. He took a long time to stop the car, there were furtive movements in the car, when he got out of the car he reached back in, and then he brushed his shirt like he was hiding something. State v. Rodriguez, 2010 Ohio 1944, 2010 Ohio App. LEXIS 1614 (12th Dist. May 3, 2010).*

In the “famous last words” category, on ABAJ.com by Martha Neil: Student Warned Defendant School Dist. in ‘08 of Potential Webcam Privacy Peril:

Lower Merion School District would have the ability to monitor students remotely, via the laptops’ webcams, and “I could see not informing parents and students of this fact causing a huge uproar,” the unidentified teen said in an e-mail reviewed by the Philadelphia Inquirer.

In response, information systems director Virginia DiMedio told him he should “take a breath and relax,” the newspaper recounts. The district is not “a police state” and had no intention of monitoring students at home, she e-mailed back.

The story came from the Philadelphia Inquirer, and the paper got it from an e-mail sent to the school in 2008.

Two defendants who were guests in a hotel room who were with the renter had not yet spent the night still had standing. United States v. Ibarra-Penuelas, 2010 U.S. Dist. LEXIS 42110 (D. Neb. March 16, 2010):

The court finds Ibarra and Ramirez had standing to challenge the officers’ entry into the hotel room. When Cruz and the defendants checked into the hotel, all three individuals were visible from the front desk, even though only two individuals approached the front desk. The room was furnished for multiple occupants. Merely by having only Cruz’s name appear on the receipt does not indicate he was the sole guest at the hotel. The court finds the defendants manifested a subjective expectation of privacy in the hotel room and such expectation of privacy in the hotel room is objectively reasonable. Therefore, the defendants have standing to challenge the officers’ entry into Room 220.

Search by consent included use of a fiberoptic scope on the gas tank. That created probable cause. United States v. Harris, 2010 U.S. Dist. LEXIS 42617 (C.D. Ill. April 30, 2010).

“[T]his key opens the back door” is a manifestation of consent. United States v. Livingston, 2010 U.S. Dist. LEXIS 42399 (M.D. Pa. April 30, 2010).*

More on the new Colorado statute requiring notice of a right to refuse a search: New law requires notification of right to refuse search. Prior post is here.

Mistake in the address (3403 v. 3405) in the search warrant was cured by the officer’s detailed description of the place to be searched plus because the officers attached photographs of the place to be searched and they had been there for the surveillance. There was no reasonable probability the wrong place would be searched. United States v. Stiles, 2010 U.S. Dist. LEXIS 41325 (D. S.D. March 25, 2010).*

Defendant had no Fourth Amendment right to resist fingerprint when he was lawfully arrested. United States v. Williams, 2010 U.S. Dist. LEXIS 40912 (E.D. Pa. April 26, 2010).*

Inevitable discovery applied to officer’s following footprints from a grow operation in a field onto the curtilage. United States v. Witherspoon, 2010 U.S. Dist. LEXIS 41049 (W.D. Ky. April 26, 2010).*

Defendant’s 2255 argument that was merely a restatement of his already appealed search issue was barred. United States v. Robinson, 2009 U.S. Dist. LEXIS 126838 (E.D. Mich. February 27, 2009).*

The owner of a house had actual authority to consent to a search of an unlocked suitcase of another that she let be stashed in her closet because she had control over it. She consented after a threat to get a search warrant, but it was stating the obvious, so it was not unreasonably coercive. United States v. Cruz, 2010 U.S. Dist. LEXIS 39999 (E.D. Pa. April 23, 2010).*

The officer had reasonable suspicion to stop defendant’s car for improper display of its temporary tag in the back window, which could not be seen until standing right behind the car. United States v. Jones, 2010 U.S. Dist. LEXIS 40006 (N.D. Ohio April 7, 2010).*

Inevitable discovery did not support the search of defendant’s person under an alleged routine procedure. Just because something was “not uncommon” did not make it “routine.” United States v. Sullivan, 2010 U.S. Dist. LEXIS 40434 (W.D. Ky. April 26, 2010)*:

The Court finds that Detective Haight’s statements do not amount to sufficient evidence of a “routine procedure.” The fact that a thorough search was “typical” or that multiple searches were “not uncommon” does not establish that something was a routine policy. Further, Detective Haight’s own testimony that he did not arrest for permit violations and had discretion to arrest for license violations speaks against any notion that a search under the circumstances of this case would have been “routine.” The government also failed to present any written police policies or procedures. The Court notes that this case differs significantly from those inevitable discovery cases that involve inventory searches conducted on impounded vehicles, United States v. Kimes, 246 F.3d 800, 804-05 (6th Cir. 2001), or booking procedures in which officers routinely inventory a suspect’s belongings at the police station. See United States v. Gorski, 852 F.2d 692, 696 (2d Cir. 1988). There is no evidence here that a more thorough search was an “invariable” procedure. Id. Rather, the decisions made by the officers in this case were largely discretionary, and not exercised according to standard criteria. See Kimes, 246 F.3d at 805.

Defendant had no standing to challenge a search of his work computer which had a logon banner that stated that it was subject to monitoring. United States v. Woods, 2010 U.S. Dist. LEXIS 40693 (S.D. Ga. March 24, 2010).*

A convenience store operator called the police to complaint that someone was “fiddling” with a car too long outside, so a police officer showed up to check. The encounter with the officer was consensual and reasonable suspicion developed. Defendant was driving without a license and he was arrested and the car was validly searched. Grimes v. State, 2010 Ga. App. LEXIS 406 (April 22, 2010).*

Defendant’s stop for not having a seat belt on was justified by the officer not being able to see the shoulder strap on him. State v. Dansby, 2010 Tenn. Crim. App. LEXIS 338 (April 23, 2010).*

Defendant’s argument that the issuing magistrate was not neutral and detached because he had represented the defendant in the past was not preserved for review and not plain error on this record. State v. Miller, 2010 Tenn. Crim. App. LEXIS 341 (April 22, 2010).*

The Practice of Medicine is a pervasively regulated industry, so its subpoenas and records search was governed by Burger. This suit is thus barred by qualified immunity. Desilva v. State Med. Bd. of Ohio, 2010 U.S. Dist. LEXIS 40059 (S.D. Ohio April 23, 2010):

In addition, Ohio requires that each person who practices medicine in the state to apply for and take an examination to determine his or her competence to practice medicine. See Ohio Rev. Code § 4731.13. If an individual passes the examination, the Board issues a certificate stating that the person is authorized to practice medicine. See Ohio Rev. Code § 4731.14. This certificate to practice can be revoked by the Board for numerous reasons which are enumerated in Ohio Revised Code § 4731.22(B). The Board is given the authority to “investigate evidence that appears to show that a person has violated any provision of this Chapter or any rule adopted under it.” Ohio Rev. Code § 4731.22(F)(1). Therefore, a physician is aware that he or she is subject to investigation by the Board. The Court concludes that based on the foregoing that the practice of medicine in Ohio is a pervasively regulated business.

In the case of the allegedly stolen iPhone4 from the bar in San Jose to the website Gizmodo, Apple demanded return of the phone and it supposedly was. Then there was a search warrant executed on the place of the person who had it.

On the blog Photography is Not a Crime is iPhone raid once again shows a judge leaning against Fourth Amendment:

So some drunk fool working for Apple leaves behind an unreleased model of a future generation iPhone at a bar, only for it to wind up in the hands of a technology journalist who described it in detail in a Gizmodo article.

Next thing you know, a judge in California is signing a search warrant allowing cops to raid the writer’s home, seizing four computers and two servers.

Now Gawker, the company that owns Gizmodo, is accusing authorities of violating state laws that supposedly protect journalists from such raids.

Section 1070 of the California Evidence Code protects journalists from forcing journalists to reveal their sources.

And California Penal Code 1524 allows search warrants to be granted when stolen property is involved.

This will be interesting. Remember, possessing evidence of a crime, sources or not, target defendant or not, makes the person subject to execution of a search warrant under Zurcher v. Stanford Daily.

To avoid the § 1070 problem, a master may have to be appointed to review the material to protect the source. Perhaps the police and DA in San Jose are investigating industrial espionage. The question is only probable cause, and we know that that isn’t much of a standard. San Jose is the technology capital of the world. If they didn’t investigate that possibility, which was suggested in the press last week, what good are they to the town industry?

The Irrelevancy of the Fourth Amendment in the Roberts Court by Thomas K. Clancy of the University of Mississippi School of Law, 85 Chi.-Kent L. J. 191 (2010). Abstract:

Since John Roberts Jr. became Chief Justice of the Supreme Court, there has been a measurable decline in the number of cases addressing Fourth Amendment questions. This article examines the reasons for that decline and predicts the substantial elimination of Fourth Amendment litigation in the Roberts Court. The prediction is based on several premises, including the lack of interest of the justices on the Court concerning search and seizures principles and two significant recent cases, Pearson v. Callahan and United States v. Herring, which presage a significant decline in the number of lower court cases addressing the merits of the Fourth Amendment and, consequently, fewer cases worthy of Supreme Court review. If these premises hold true, the Fourth Amendment, while remaining the most commonly implicated aspect of the Constitution, may lose its status as the most frequently litigated part. What will remain is a residual, complex jurisprudence with little relevance.

There are three other Fourth Amendment articles in the same issue of the law review:

• Donald Dripps, The Fourth Amendment, the Exclusionary Rule, and the Roberts Court: Normative and Empirical Dimensions of the Over-Deterrence Hypothesis, 85 Chi.-Kent L. Rev. 209 (2010)

• Ronald J. Rychlak, Replacing the Exclusionary Rule: Fourth Amendment Violations as Direct Criminal Contempt, 85 Chi.-Kent L. Rev. 241 (2010)

• Scott E. Sundby, Mapp v. Ohio’s Unsung Hero: The Suppression Hearing as Morality Play, 85 Chi.-Kent L. Rev. 255 (2010)

The Arizona state immigration bill, S.B. 1070, was signed into law by the Governor yesterday. It permits detention on reasonable suspicion of being an illegal alien, and the burden apparently is on the detainee to prove he or she is a citizen. How does one prove citizenship? Carry your birth certificate? Won’t the footprint be a little dated? No picture on a birth certificate. Isn’t the burden of proof in a warrantless detention on the government? Doesn’t the Fourth Amendment protect alleged illegals already inside the U.S.? It has to to protect the rest of us.

This is what I imagine in Arizona:

I suppose a whitebread guy like me could be suspected of being an illegal Canadian alien, assuming that I can say “aboot” rather than “about.” They won’t be looking for Canadians, that’s for sure.

See Huffington Post.com, NYTimes.com, and the Arizona Republic has several articles linked of the central one.

Want more? Just Google “S.B. 1070” because the number of hits is huge.

The traffic stop of defendant was justified, and it took ten minutes to run the computer checks. After the computer checks, it took two minutes to walk the dog around the vehicle, which was not reasonable. United States v. Jackson, 2010 U.S. Dist. LEXIS 39467 (E.D. Tenn. April 21, 2010), rejecting in part the R&R 2009 U.S. Dist. LEXIS 126777 (E.D. Tenn. October 29, 2009).

The officer had reasonable suspicion that defendant was involved in a bank robbery when he stopped the defendant based on a CI’s information and observations of the defendant and his car. United States v. Evans, 2010 U.S. Dist. LEXIS 39243 (N.D. Ill. April 21, 2010).*

No IAC where defendant’s only complaint on the suppression issue was that certain witnesses were not called but the outcome would not change. Cantrell v. United States, 2010 U.S. Dist. LEXIS 39290 (W.D. Mo. April 20, 2010).*

David B. Owens, Fourth Amendment Remedial Equilibration: A Comment on Herring v. United States and Pearson v. Callahan, 62 Stan. L. Rev. 563 (2010).

Abstract:

The Fourth Amendment protects the “right of the people to be secure … against unreasonable searches and seizures,” but determining what this right means and how it should be vindicated has, to put it mildly, long been controversial. In fact, because of the “wide applicability of government intrusions, ranging from countless thousands of daily intrusions at airports, traffic stops, drug testing, traditional criminal law enforcement practices, regulatory intrusions[,] … and many other searches and seizures, the Amendment is the most commonly implicated and litigated part of our Constitution.” Perhaps the most contentious element in the controversy surrounding the Fourth Amendment is determining how to enforce it—whether by the exclusionary rule, which requires unlawfully obtained evidence to be suppressed from a criminal prosecution; a civil damages remedy; an administrative sanction; or some other means.

The remedial controversy surrounding the Fourth Amendment also implicates broader questions about the relationship between a right and its remedy, evidenced by the pair of quotes above. These questions are both abstract and practical. On the abstract side, Chief Justice Marshall’s “general and indisputable rule” from Marbury exhibits the deeply-held normative principle that when a right is declared it ought to be accompanied by an attendant remedy. Llewellyn affirms this principle by noting that the causal relationship also runs in the other direction: without a remedy, there is no right. On the practical side, Llewellyn’s comment underscores that what courts do, as opposed to what they say, is the effective regulator for the scope of a given right. That is, even if a court says a lot about the value of a right, the manner in which it vindicates that right is really what determines its value…

“In light of the nature of the 911 call to which the officers were responding, appellant’s flight from the house, and most importantly, the observance of drugs in appellant’s jacket pocket, Genter had reasonable suspicion to believe appellant might be armed.” The frisk was reasonable. State v. Parsley, 2010 Ohio 1689, 2010 Ohio App. LEXIS 1405 (10th Dist. April 15, 2010).*

Defendant was admittedly speeding, so there was probable cause for his stop. When the officer talked to him, he was apparently under the influence. State v. Richard, 2010 Tenn. Crim. App. LEXIS 313 (April 13, 2010).*

Defendant lacked standing in a car lot owned by his mother where he just rearranged cars. State v. Smith, 2010 Ohio 1721, 2010 Ohio App. LEXIS 1434 (12th Dist. April 19, 2010).*

CNET News: DOJ abandons warrantless attempt to read Yahoo e-mail:

The U.S. Justice Department has abruptly abandoned what had become a high-profile court fight to read Yahoo users’ e-mail messages without obtaining a search warrant first.

In a two-page brief filed Friday, the Obama administration withdrew its request for warrantless access to the complete contents of the Yahoo Mail accounts under investigation. CNET was the first to report on the Denver case in an article on Tuesday.

From the UK: Yahoo wins email battle with US Government.

Prior post here.

Law.com: High Court Justices Consider Privacy Issues in Text Messaging Case

WaPo.com: Court takes up public employees’ privacy case

NYTimes.com: Justices Get Personal Over Privacy of Messages

LATimes: Government Says No Privacy For Employee Messages

PBS NewsHour

Look back for updates. As others show up, they’ll be added in.

An employee complaint alone cannot support a wall-to-wall search of the workplace under Barlow’s. More must be shown. In re Inspection of the Work Establishment, 2010 U.S. Dist. LEXIS 37560 (S.D. Ga. March 30, 2010):

In a remarkably similar case to this one, the Sixth Circuit held that OSHA may not rely upon neutral regulations to expand an unprogrammed complaint-based inspection into a full-scale search. Trinity Industries, Inc. v. OSHA, 16 F.3d 1455, 1460 (6th Cir. 1994). In that case, OSHA relied upon Instruction CPL 2.45A, which subjected facilities to full-scope comprehensive inspections if: “(1) an employee complaint has been filed that sets forth reasonable grounds for the Secretary of Labor to believe that a violation or danger exists; (2) the establishment is in an industry with a high lost workdays injury rate; (3) a complete safety inspection of the facility has not been carried out in the current year or in the last two fiscal years; and (4) the facility’s safety records show a lost workday injury rate at or above the national average.” Id. at 1457-58. Much as OSHA argues here that the filing of a complaint plus the implication of certain food processing SIC codes should allow it to expand its inspection, in Trinity Industries, OSHA “argue [d] that an employee complaint is only one of four conditions that must be satisfied before the Secretary may expand a limited complaint inspection under Section 8(f) into a full-scope inspection under Section 8(a). Id. at 1460. The Sixth Circuit rejected the argument, since it

ignores the primary importance placed by the Court in Barlow’s on the neutrality of the initial selection process provided by an administrative plan. In short, no matter how objective the other criteria of CPL 2.45A may be, the initiation of a search under the plan hinges on the filing of an employee complaint. Thus, the full-scope inspection authorized by the regulation cannot be the product of the kind of reasonable administrative inspection plan proposed in Barlow’s.

Orin Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005 (2010).

The abstract:

This Article offers a general framework for applying the Fourth Amendment to the Internet. It assumes that courts will seek a technology-neutral translation of Fourth Amendment principles from physical space to cyberspace, and it considers what new distinctions in the online setting can reflect the function of Fourth Amendment protections designed for the physical world. It reaches two major conclusions. First, the traditional physical distinction between inside and outside should be replaced with the online distinction between content and non-content information. Second, courts should require a search warrant that is particularized to individuals rather than Internet accounts to collect the contents of protected Internet communications. These two principles point the way to a technology-neutral translation of the Fourth Amendment from physical space to cyberspace.

City of Ontario v. Quon, 08-1332, is being argued today.

Issues:

1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers;

2. Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.