Taking of DNA from a misdemeanant convicted of “predatory offense” of domestic assault that was originally a felony was reasonable. State v. Johnson, 777 N.W.2d 767 (Minn. App. 2010):

The Bartylla court concluded that the state has substantial interests in DNA collection, specifically identifying these interests as “exonerating the innocent, deterring recidivism, identifying offenders of past and future crimes, and bringing closure for victims of unsolved crimes.” Id. at 18. Here, the legislature has narrowly defined the misdemeanor offenses to which Minn. Stat. § 609.117 applies, namely those arising from the same set of circumstances as a charged felony, such that the substantial state interests enumerated in Bartylla exist with equal force for these non-felony offenses.

These substantial state interests are balanced against the minimal intrusion involved in DNA collection for identification purposes and the reduced expectation of privacy held by an offender convicted of a misdemeanor of the type narrowly defined here by its connection to a felony charge. See id. (describing the physical intrusion involved in acquiring the DNA sample as “minimal”). The narrow scope of section 609.117 limits its application to those who have a reduced expectation of privacy based on the nature of their offense of conviction, which also weighs in favor of the statute’s constitutionality.

Applying Bartylla’s totality-of-the-circumstances analysis and balancing the substantial state interests against the diminished privacy expectations and minimal intrusion that exist here, we conclude that Minn. Stat. § 609.117, as applied to those convicted of a misdemeanor arising from the same set of circumstances as a charged felony, does not violate the search-and-seizure provisions of the United States or Minnesota constitutions.

Probable cause to arrest and probable cause to search are different constitutional events. Just because probable cause to arrest is lacking does not mean that probable cause to search for evidence is too. State v. Chippero, 201 N.J. 14, 987 A.2d 555 (2009):

We join those many courts in recognizing that probable cause to arrest and probable cause to search involve distinct and not necessarily identical inquiries. A finding of probable cause as to one does not mean that probable cause as to the other must follow, nor does the lack of one compel a finding that there is a lack of support for the other. Although a probable cause determination that an individual committed a crime may increase the likelihood that the individual’s residence contains evidence of the crime, a court may find a lack of probable cause to arrest an individual and yet determine that probable cause exists to search the home where that individual resides. See, e.g., Jones, supra, 994 F.2d at 1055-56; Melvin, supra, 596 F.2d at 495-96. Simply put, a probable cause determination to search a home where the suspect lives may be valid irrespective of whether probable cause to arrest that particular individual has crystallized. See, e.g., Jones, supra, 994 F.2d at 1055-56; Melvin, supra, 596 F.2d at 495-96.

Defendant was on parole for felony eavesdropping as a peeping tom. He was encountered doing it again, and six police officers stopped him at 2 a.m. on his bicycle and questioned him, and he admitted to having videos of unsuspecting females on his computer. His admissions were used to get a search warrant, and child porn was found. His statement was custodial and he was not Mirandized, but, under Patane, it could be used to get a search warrant. United States v. Stark, 2009 U.S. Dist. LEXIS 101888 (E.D. Mich. November 2, 2009).*

Defendant did not really dispute the officer’s testimony that they knocked before entering, so it was not a violation of knock-and-announce. Also, Hudson forecloses relief. The officers also left a copy of the warrant and there is no requirement it be served before the search. United States v. Thompson, 667 F. Supp. 2d 758 (S.D. Ohio 2009)*:

The Court finds that no knock-and-announce violation occurred. Agent Beckman testified that the entry team knocked on the garage door, announced their presence, and waited before entering. Although she did not hear what the Agents were saying and thought someone was calling her name, Mrs. Thompson’s testimony was consistent with the Agents’ having announced their presence prior to entry. Moreover, even if the Court found that the executing agents failed to knock-and-announce their presence before executing the warrant, Thompson is not entitled to suppression because “[s]uppression is not a remedy for violation of the knock-and-announce rule.” United States v. Roberge, 565 F.3d 1005, 1010 (6th Cir. 2009); see also Hudson, 547 U.S. at 594 (holding that the exclusionary rule does not apply to knock-and-announce violations). Therefore, Thompson’s request for suppression on this ground is DENIED.

. . .

The Supreme Court and the Sixth Circuit have stated in dicta that neither the Fourth Amendment nor Rule 41 requires the executing officer to present a copy of the warrant before conducting the search. United States v. Grubbs, 547 U.S. 90, 98-99, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006); Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco and Firearms, 452 F.3d 433, 443, 444 (6th Cir. 2006) (en banc) (same). In both Grubbs and Baranski, the executing agents presented a copy of the warrant to the defendant or the property owner shortly after the search began or upon request. Grubbs, 547 U.S. at 93 (defendant provided with copy of warrant 30 minutes into the search); Baranski, 452 F.3d at 436 (property owner’s attorney shown copy of the warrant immediately upon request). In Groh v. Ramirez, however, the Supreme Court expressly left open the question directly raised in this case — whether it would be unreasonable under the Fourth Amendment for an executing officer to refuse to produce a warrant at the outset of a search upon the request of an occupant. 540 U.S. 551, 562 n.5, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004) (“Whether it would be unreasonable to refuse a request to furnish the warrant at the outset of the search when, as in this case, an occupant of the premises is present and poses no threat to the officers’ safe and effective performance of their mission, is a question that this case does not present.”); see also Baranski, 452 F.3d at 442 (noting that the Groh court “left open only the possibility that it would be ‘unreasonable’ to decline such a request [to see a warrant at the outset of a search where the occupant is present]…).

Merely asking for ID is not compulsion under Bostick. United States v. Morales-Ruiz, 2009 U.S. Dist. LEXIS 101786 (M.D. Pa. November 2, 2009).*

Affidavit for search warrant based on a dog alert did not have to include the dog’s history and training to show PC. United States v. Freeman, 666 F. Supp. 2d 454 (D. Del. 2009).

Court’s should not “flyspeck” a search warrant affidavit. Reasonable inferences here support PC, and it was obtained and executed in good faith. United States v. Palma, 2008 U.S. Dist. LEXIS 111058 (N.D. Cal. December 19, 2008):

“Normally, [courts] do not ‘flyspeck’ the affidavit supporting a search warrant through de novo review; rather, the magistrate judge’s determination ‘should be paid great deference.’ In addition, the Supreme Court has reminded reviewing courts that ‘[a]lthough in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, resolution of doubtful or marginal cases in this area should largely be determined by the preference to be accorded to warrants.'” [United States v. Kelley, 482 F.3d 1047,] 1050-51 [(9th Cir. 2007)] (citations omitted).

Officers responded to a shots fired call, and defendant saw them and fled, discarding a gun. The gun was not the product of any illegal police conduct. Commonwealth v. Jeudy, 75 Mass. App. Ct. 579, 915 N.E.2d 580 (2009).* (Caution: This case also discusses the policy of the exclusionary rule when it was completely unnecessary. See following post. Is this a disturbing trend?)

Defendant sought immunity so she could testify that consent was coerced, which was denied, so she did not testify on the advice of counsel. The consent was valid based on the only testimony in the record. United States v. Plummer, 2009 U.S. App. LEXIS 18008 (3d Cir. August 13, 2009) (unpublished):

The problem for Plummer is that Smith, on the advice of her counsel, would not testify at the suppression hearing without immunity from prosecution. The District Court denied that request after concluding that the extraordinary relief of immunity was not needed for Smith to testify on the limited issue of whether she consented to the search of her apartment for Plummer. Thus the only testimony before the Court at the suppression hearing was that of two police officers to the effect that Smith consented to the search.

Consent was valid on this record, and the district court did consider the defendant’s testimony. United States v. Noe, 2009 U.S. App. LEXIS 18156 (3d Cir. August 13, 2009) (unpublished).*

The special findings of the jury on an excessive Terry stop and search are supported by the evidence and violate clearly established law. Carter v. City of Yonkers, 345 Fed. Appx. 605 (2d Cir. 2009) (unpublished):

On the special verdict form, the jury indicated its findings that Appellants searched Plaintiffs’ car or persons or photographed their faces without consent, and that they “conducted an unreasonable search or seizure by searching [Plaintiffs’] cell phone[s], searching [their] person[s] beyond a pat-down, or by taking photograph[s] of their bod[ies].” We have little difficulty concluding that these findings establish a Fourth Amendment violation. The extensive search of Appellees, their vehicle, and/or their cell phones, along with the photographing–whether alone or in combination–went well beyond what was permissible under a Terry stop.

Defendant was a “recent occupant” of his car, although it was locked and he was handcuffed, when he was arrested standing outside it where it was reasonable to believe that there was contraband in the car from the blunt he dropped. Dawkins v. United States, 987 A.2d 470 (D.C. App. 2010):

Under the D.C. Circuit Court’s reasoning in Mapp and Booker, appellant was a “recent occupant,” pursuant to Thornton’s test of “temporal or spatial relationship to the car at the time of the arrest and search.” 541 U.S. at 622. Appellant was leaning against his vehicle when the police approached and arrested him. The undercover officer saw appellant open the car door, briefly lean inside, close the door, and resume leaning against the car. The police searched appellant’s car immediately after the arrest — which had happened within “a matter of feet” of the car — whereupon appellant exclaimed, “Why are you guys going to go in my car?” A sufficiently proximate relationship existed between appellant and his car so as to establish that he was a “recent occupant” at the time he was arrested.

But, as the Supreme Court said in Gant, that is not enough, and the warrantless search of an automobile incident to arrest is constitutionally permissible only if the police reasonably believe either that the suspect could have such access to his car as would pose a risk to the safety of the officers or potential destruction of evidence, as permitted by Chimel, or that evidence of the offense for which he was arrested could be found in the car, pursuant to Thornton. 129 S.Ct. at 1719. Here, appellant was arrested for possession of marijuana — for which the police had probable cause — after seeing him drop a blunt on the ground. The police had noticed that the blunt was unevenly rolled, which suggested that appellant had manipulated the cigar to smoke marijuana. We do not think that Chimel provides a basis to search the car incident to arrest because the car was locked (and appellant handcuffed) when he was arrested, and therefore did not pose a risk to the safety of the officers or the integrity of any evidence. But Thornton does furnish that basis, because having observed appellant lean into the car and close the door shortly before he was seen with a marijuana blunt, the officers reasonably could have believed that appellant had additional marijuana or drug paraphernalia in the car such that it was “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Gant, 129 S.Ct. at 1719.

Confrontation rights applied to a suppression hearing, so it was error to permit co-conspirator to testify by videoconference from jail. Here, however, it was harmless because it was cumulative. Commonwealth v. Atkinson, 2009 PA Super 239, 987 A.2d 743 (2009) (Note: Not all courts agree.)

Officers investigating passengers on a train developed reasonable suspicion for claimant’s suitcase, and it was reasonable to remove it from the train for a dog sniff under the circumstances. United States v. Funds in the Amount of $ 40,000, 2009 U.S. Dist. LEXIS 115487 (N.D. Ill. December 10, 2009).*

The search of defendant’s car was justified by the automobile exception and not search incident under Gant. United States v. Goldsmith, 2009 U.S. Dist. LEXIS 115430 (E.D. Tex. November 12, 2009).*

Telephonic search warrant was validly issued for defendant’s house on smell of burning marijuana. Defendant’s production of a medical marijuana authorization before the search did not negate probable cause because it was an affirmative defense to possession. State v. Fry, 168 Wn. 2d 1 (2010) (dissent):

There is no contention that the facts, including the information and smell of marijuana, do not support a finding of probable cause to search the Frys’ residence. However, Fry contends the probable cause was negated once he produced the authorization. Although there was a later dispute over the validity of the authorization, there is no indication in the record that the officers or the magistrate questioned the validity at the time the search warrant was issued. Nevertheless, the officers’ search and arrest were supported by probable cause, and a claimed authorization form does not negate probable cause.

. . .

Possession of marijuana, even in small amounts, is still a crime in the state of Washington. See RCW 69.50.4014. A police officer would have probable cause to believe Fry committed a crime when the officer smelled marijuana emanating from the Frys’ residence. Fry presented the officer with documentation purporting to authorize his use of marijuana. Nevertheless, the authorization only created a potential affirmative defense that would excuse the criminal act. The authorization does not, however, result in making the act of possessing and using marijuana noncriminal or negate any elements of the charged offense. Therefore, based on the information of a marijuana growing operation and the strong odor of marijuana when the officers approached the Frys’ home, a reasonable inference was established that criminal activity was taking place in the Frys’ residence. Therefore, the officers had probable cause and the search warrant was properly obtained.

Defendant was an IT guy at Ohio’s Miami U, and several high end items, including a $4,500 digital camera, disappeared from the University which were found on eBay for sale by “thesizemores.” An investigation was begun, and an officer went to defendant’s house to talk to him, but nobody answered. The officer left and called defendant, cellphone to cellphone, and defendant answered and said that he was out doing some personal business. The officer, however, heard defendant’s storm door squeaking on the phone, a sound he had just heard, so he went back and saw defendant driving away from his home. A traffic stop was made based on erratic driving, and the officer asked about the stolen camera. All the stolen electronic items from the University were in the bed of the defendant’s pickup truck in plain view [apparently the evidentiary value was immediately apparent]. The stop was justified. State v. Sizemore, 2009 Ohio 5069, 2009 Ohio App. LEXIS 4282 (12th Dist. September 28, 2009)* (IT guys usually think they are so smart. Selling stolen property on eBay? In your own name?).

Search of defendant’s pretrial jail cell and seizure of Romanian language documents to use in another matter did not violate defendant’s Fourth or Sixth Amendment rights. As to the Sixth Amendment claim, the documents were never used in state court, so he could show no constitutional violation. Gheorghiu v. Commonwealth, 54 Va. App. 645, 682 S.E.2d 50 (2009).*

A school search validly occurred based on another student telling school officials that he saw defendant with a gun at school. That was a sufficient basis of knowledge for this CI. Commonwealth v. Monteiro, 75 Mass. App. Ct. 280, 913 N.E.2d 900 (2009).*

Defendant had no reasonable expectation of privacy in a search of the records of a credit card processor for credit card owners purchasing child porn. United States v. Mason, 660 F. Supp. 2d 479 (W.D. N.Y. 2009).*

Knock and announce was excused in advance by the magistrate based on the defendant’s running a drug trafficking operation from his house, 25 prior drug arrests, multiple prior weapons arrests, and possession of a pit bull. The officer’s expertise in these matters should also have been credited. The trial court was hypertechnical in analyzing the affidavit and suppressing. Because the no-knock was properly permitted, the court does not address whether Hudson should apply. Commonwealth v. Santiago, 452 Mass. 573, 896 N.E.2d 622 (2008).*

A house was under surveillance and defendant and another came out and got in a car. The car had expired tags, however. Before the defendant was asked for ID, the defendant fled. While the officer did not have cause for the initial stop, the defendant’s flight gave cause for the stop. State v. Washington, 193 N.C. App. 670, 668 S.E.2d 622 (2008).*

Defendant was stopped for a window tint violation, and he was acting suspicious, so the officer asked for and was denied consent. Before the warning ticket could be written, another officer with a drug dog arrived and walked around the car and alerted. The stop was not lengthened, and it was not unreasonable. King v. State, 295 Ga. App. 125, 671 S.E.2d 198 (2008).*

Defendant was unreasonably detained after he produced a Mexican driver’s license which was facially valid and could be used to identify him. Motion to suppress granted. United States v. Izguerra-Robles, 660 F. Supp. 2d 1202 (D. Ore. 2009):

The government contends that defendant was lawfully placed under arrest only after failing to display a driver’s license. This court disagrees and finds that defendant was constructively arrested when he was ordered from the mobile home. See United States v. Al-Azzawy, 784 F.2d 890, 892-94 (9th Cir. 1985) (holding that coercive police conduct outside a home can result in the arrest of person within the home). Based on the totality of the circumstances, a reasonable person in defendant’s position would not feel he was free to disobey the two police officers ordering him from the mobile home. Although the police officers did not brandish their weapons, defendant was given no choice but to exit the mobile home on their orders.

Even assuming defendant was not arrested until he failed to display a driver’s license, and assuming the police had probable cause to effect that arrest, the scope of the arrest exceeded that granted by ORS 807.570. Under ORS 807.570, failure to present a license is an arrestable offense. However, “[a] police officer may detain a person arrested … only for such time as reasonably necessary to investigate and verify the person’s identity.” This offense does not allow “officers to use it as a ploy to conduct otherwise unauthorized searches.” State v. Bishop, 157 Ore. App. 33, 967 P.2d 1241, 1245 (Or. App. 1998). Once the person’s identity is verified, “detention is no longer reasonably necessary and the individual must be released.” Id.

Another Gant remand: United States v. Casper, 536 F.3d 409 (5th Cir. 2008), vacated and remanded, 129 S. Ct. 2156, 173 L. Ed. 2d 1153 (2009), posted here, remanded to the District Court for application of inevitable discovery, an issue preserved by the government. United States v. Casper, 332 Fed. Appx. 222 (5th Cir. 2009) (unpublished).*

Defense counsel was not ineffective for not challenging the search because defendant lacked standing. United States v. Cook, 344 Fed. Appx. 473 (10th Cir. 2009) (unpublished).*

Defendant was not arrested or detained when he was talked to by police, and his own admissions gave reasonable suspicion for an immigration stop. United States v. Vasquez-Ortiz, 344 Fed. Appx. 551 (11th Cir. 2009) (unpublished).*

Hot pursuit was similar to that in Santana. The defendant got to the threshold, where he was detained and he threw a baggie of cocaine inside. The officer could retrieve it. State v. Allen, 2009 Tenn. Crim. App. LEXIS 799 (September 23, 2009).*

“[T]he Defendant appeals the trial court’s conclusion that the checkpoint did not unreasonably intrude upon his constitutional right to privacy, arguing (1) the advance publicity of the checkpoint was inadequate; (2) the checkpoint lacked a basis in a statistical study establishing the need for DUI deterrence at the checkpoint’s location; and (3) the checkpoint inadequately limited supervising officer Sergeant Bay’s discretion in implementing the checkpoint. We address each of the Defendant’s contentions below,” and the prosecution satisfied each requirement. State v. Muncie, 2009 Tenn. Crim. App. LEXIS 811 (September 23, 2009).*

Defendant’s stop was based on a seat belt violation, but ICE had information on defendant from the year before that made PC to search the car for drugs from a plane that flew into the U.S. United States v. Alvarez, 2009 U.S. Dist. LEXIS 87995 (D. N.J. September 23, 2009) (Well, if they had PC to search the car, why did they have to use the seat belt violation for the stop?)*

Similarly, the stop here was based on PC for a traffic offense, but there was PC for a felony, too. United States v. Stilling, 346 Fed. Appx. 458 (11th Cir. 2009) (unpublished):

Furthermore, the district court’s application of the inevitable discovery doctrine falls squarely within this Circuit’s jurisprudence. As in Jefferson, the police had information that caused them to focus their attention on Stilling even before the stop. See Jefferson, 382 F.3d at 1296. Moreover, and assuming the stop by Deputy Ortiz had not occurred, Deputy Lajic was seconds behind Deputy Ortiz in stopping Stilling and would have lawfully stopped him based on the traffic violations Stilling had committed. As Deputy Lajic testified, he was looking for probable cause to stop this particular vehicle, which had been identified as coming from a high drug-trafficking area. Upon a lawful stop of Stilling’s vehicle, Deputy Lajic would have inevitably discovered the cocaine in Stilling’s vehicle. There was a reasonable probability the drugs would have been discovered during Deputy Lajic’s stop, and Deputy Lajic was actively pursuing Stilling prior to Deputy Ortiz’s stop. See Jefferson, 382 F.3d at 1296.

In the Second Circuit, a seizure of children is a violation of their rights, but not the rights of the parents. P.C. v. Conn. Dep’t of Children & Families, 662 F. Supp. 2d 218 (D. Conn. 2009):

The seizure of the C. children does not, however, implicate the Fourth Amendment rights of P.C. and S.R.C. as alleged in Count One. See Second Amended Complaint at 25 (“The specific acts of the DCF employees … violated the rights of the parents in this manner …”) (emphasis added). That is, to the extent they bring a claim to redress their own Fourth Amendment rights, as opposed to the Fourth Amendment rights of their children, such claim fails as a matter of law. See Tenenbaum v. Williams, 862 F. Supp. 962, 974 (E.D.N.Y. 1994), aff’d in part and vacated in part, 193 F.3d 581 (2d Cir. 1999) (“[T]he court is not aware … of any federal decision which has held that a parent may legitimately assert an individual, as distinct from representative, Fourth Amendment claim based upon the seizure of a child”); see also F.K. v. Iowa Dist. Court, 630 N.W.2d 801, 806 (Iowa 2001) (“Numerous federal courts have recognized parents’ rights under 42 U.S.C. § 1983 to vindicate–in a representative capacity–the constitutional interests of their children whose removal from their custody was accomplished without warrant …. These cases uniformly recognize that the seized children, not their parents, have privacy interests protected by the Fourth Amendment”). Neither P.C. nor S.R.C. has been the subject of a search or seizure at the hands of the defendants. Consequently, defendants are entitled to summary judgment as to Count One.

Exigent circumstances existed for a warrantless entry of a house for a man with a gun who was known to use it. The fact he was asleep did not lessen the threat. United States v. Huddleston, 593 F.3d 596 (7th Cir. 2010)*:

Here, the officers were told that Huddleston–whom they knew to have a criminal history involving the discharge of a firearm–had a gun and was trespassing in the home of a woman whom he had threatened to kill earlier that evening. Based on those facts, it was reasonable for the officers to conclude that they were dealing with an armed man poised to carry out a death threat, who would not hesitate to discharge his weapon as he had in the past. In these circumstances, the officers had reasonable grounds to believe that Huddleston posed an immediate threat to their safety and the safety of others in the neighborhood. A number of other circuits have “found the presence of guns to justify searches and seizures on the basis of exigent circumstances.” United States v. Reed, 935 F.2d 641, 643 (4th Cir. 1991) (holding that the presence of a sawed-off shotgun in plain view could have constituted a threat to the personal safety of the officers and thus justified the warrantless seizure); see also United States v. Rodgers, 924 F.2d 219, 222-23 (11th Cir. 1991) (exigent circumstances arose when police saw handguns that suspect, a convicted felon, was not allowed to possess, lying on a couch); United States v. Lindsey, 877 F.2d 777, 780-82 (9th Cir. 1989) (information about presence of guns and bombs justified warrantless entry); United States v. Hill, 730 F.2d 1163, 1170 (8th Cir. 1984) (entry justified by officer’s observation through a sliding glass door of a pistol on a bookcase); United States v. McKinney, 477 F.2d 1184, 1186, 155 U.S. App. D.C. 299 (D.C. Cir. 1973) (sawed-off shotgun lying on night table in hotel room was exigent circumstance justifying warrantless entry and seizure).

The fact that Huddleston was asleep does not render the officers’ belief that Huddleston posed an immediate threat unreasonable. As the district court concluded, there was a real risk that Huddleston–who was fully clothed, sitting up and holding the gun–could awaken at any time. Nor are we persuaded that it was unreasonable for the officers to conclude that Huddleston was trespassing without inquiring as to whether he had Tarana White’s permission to be at the house.

While defendant was in custody, it was not custodial. “Defendant’s encounter with the trooper was, by comparison, a much less coercive situation. Although in custody for purposes of Miranda during the trooper’s explanation of consent, defendant was unrestrained. Always polite, the trooper applied no force or threat whatsoever, aside from outlining the necessity and delay of towing the car and obtaining a warrant.” State v. Sole, 2009 VT 24, 185 Vt. 504, 974 A.2d 587 (2009).*

Seizure of keys to a car were proper as evidence of a crime, although the search of the car did not occur until cause developed. United States v. Stewart, 315 Fed. Appx. 554 (6th Cir. 2009) (unpublished).*

In a suit under the Stored Communications Act, a person accidentally leaving his e-mail password available was not consent to accessing his e-mail account. Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, 587 F. Supp. 2d 548 (S.D. N.Y. 2008):

Because Fell had a reasonable expectation of privacy in his e-mail accounts, Brenner could only be authorized to access those accounts if Fell had given consent. She argues that Fell gave her implied consent to search his e-mails because he left his login information stored on PPBC’s computers where it could be discovered and used by Brenner. The Court does not accept Plaintiffs’ argument.

There is no sound basis to argue that Fell, by inadvertently leaving his Hotmail password accessible, was thereby authorizing access to all of his Hotmail e-mails, no less the e-mails in his two other accounts. If he had left a key to his house on the front desk at PPBC, one could not reasonably argue that he was giving consent to whoever found the key, to use it to enter his house and rummage through his belongings. And, to take the analogy a step further, had the person rummaging through the belongings in Fell’s house found the key to Fell’s country house, could that be taken as authorization to search his country house. We think not. The Court rejects the notion that carelessness equals consent. See Lipin v. Bender, 193 A.D.2d 424, 426, 597 N.Y.S.2d 340, 341 (1st Dep’t 1993) (rejecting the argument that because documents “had been left unsecured, directly in front of the plaintiff, in a public area, … plaintiff had been ‘invited’ to read the documents”).

Implied consent, at a minimum, requires clear notice that one’s conduct may result in a search being conducted of areas which the person has been warned are subject to search. Cf. United States v. Workman, 80 F.3d 688, 694 (2d Cir. 1996) (holding that a posted sign and an inmate handbook, providing notice that telephone calls would be monitored, together with inmate’s “plain awareness that his conversations were subject to monitoring,” amounted to implied consent to surveillance); United States v. Amen, 831 F.2d 373, 378-79 (2d Cir. 1987) (prisoners gave implied consent to interception of telephone calls because they were on notice from at least four sources, including actual direct notice); Sec. and Law Enforcement Employees v. Carey, 737 F.2d 187, 202 n.23 (2d Cir. 1984) (noting that an important consideration in determining whether a person has consented to being searched is “evidence that the person had knowledge of the right to refuse to give consent;” and rejecting the argument that correction officers consented to being strip-searched “merely by accepting employment and by receiving [a] rule book [giving notice that the Department’s employees, while on correctional facility property, were subject to being searched]”); Anobile v. Pelligrino, 303 F.3d 107, 124-25 (2d Cir. 2002) (rejecting an assertion that racetrack employees, by signing a license with “a blanket waiver of the right to object to any future searches,” gave an effective consent to search their dormitory rooms, because “there [was] no evidence demonstrating that the plaintiffs were aware of their right to refuse to give consent to this unconstitutional search or indeed whether they could refuse and still obtain employment).

In this case, Fell only had notice that PPBC’s computers could be searched for evidence of personal e-mail use, not that his Hotmail, Gmail, or WFBC e-mail accounts would also be searched. He was also never given the opportunity to refuse Brenner any authorization to search his e-mails. At most, one could argue that Fell had consented to Brenner viewing his password. But he did not consent to her to using it. Absent clear knowledge of the extent of what could be searched, and the opportunity to refuse or withdraw his consent, the Court rejects Plaintiffs’ argument that Fell gave implied consent to Brenner to search his Hotmail account simply by leaving his password on her computer.

On the WSJ Law Blog this afternoon On Gmail and the Constitution, LegalBlogWatch, and on Techblogger and yesterday on The Volokh Conspiracy, is a report of In the Matter of an Application of the United States for a Search Warrant on the Contents of Electronic Mail, 665 F. Supp. 2d 1210 (D. Ore. 2009), holding that the Fourth Amendment does not require notice to an e-mail account holder of the contents of a search warrant to an ISP for the content of e-mails.

This is an interesting opinion and worth the read. The sad fact is that an amendment will be required to put a notice provision into the Stored Communications Act. People think e-mail is private like letters in transit, but “[t]he blunt fact is, they are not.” Technology is steadily overcoming the Fourth Amendment. From GPS to e-mail, our privacy is slipping away, and older notions of the meaning of the reasonable expectation of privacy no longer seem to apply. If people think that e-mail is private, then why cannot they have a subjective expectation of privacy “that society is prepared to recognize as ‘reasonable'”? Katz, infra, at 361 (Harlan, J., concurring).

II. The Constitutional Notice Requirement is Met by Executing the Warrant on a Third Party

As discussed earlier, the SCA was intended to codify overarching Fourth Amendment protections into a specific statute. What Fourth Amendment protections, if any, conferred on e-mail and other electronic communication independent of the SCA is, to date, unclear. See Kerr, supra, at 1210-12. Assuming, for the sake of argument, that the e-mails at issue in this case are protected under the Fourth Amendment, it is necessary to determine whether there is a constitutional requirement for notice to the subscriber of the e-mail account.

Although the Fourth Amendment does not prohibit surreptitious entries, per se, the absence of a notice requirement in a warrant “casts strong doubt on its constitutional adequacy.” United States v. Freitas (Freitas I), 800 F.2d 1451, 1456 (9th Cir. 1986) (internal citations omitted). The Supreme Court has noted that failing to require notice and return procedures for a warrant allows the government full discretion regarding what to seize, and thus allows searches and seizures “without adequate judicial supervision or protective procedures.” Berger v. New York, 388 U.S. 41, 60 (1967) (striking down a New York law that permitted any judge to issue an ex parte order for eavesdropping upon oath or affirmation of an attorney or officer, as violating the Fourth Amendment due to lack of requirement for particularity as to the related crime, the place to be searched or conversations sought, and a failure to require exigent circumstances). The sanctity of the home is often cited as the central purpose for this notice requirement, but the requirement has not been explicitly limited to searches of homes. See, e.g., Freitas I, 800 F.2d at 1456 (stating that “[t]he mere thought of strangers walking through and visually examining the center of our privacy interest, our home, arouses our passion for freedom as does nothing else”).

Notice does not always have to be provided before a search or seizure occurs. See Dalia v. United States, 441 U.S. 238, 248 (1979) (holding that “[t]he Fourth Amendment does not prohibit per se a covert entry performed for the purpose of installing otherwise legal electronic bugging equipment”). “[O]fficers need not announce their purpose before conducting an otherwise authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence.” Katz v. United States, 389 U.S. 347, 355 n. 16 (1967) (citing Ker v. California, 374 U.S. 23, 37-41 (1963)); see also Nordelli v. United States, 24 F.2d 665, 666-67 (9th Cir.1928) (holding that Rule 41(d), now Rule 41(f)(1)(C), does not invariably require that the copy of the warrant and receipt be served before a search takes place). However, when there is no advance notice, a substitute must exist to satisfy the Fourth Amendment, as in Title III, which has been held to provide “a constitutionally adequate substitute for advance notice by requiring that once the surveillance operation is completed the authorizing judge must cause notice to be served on those subjected to surveillance.” Dalia, 441 U.S. at 248.

It is clear that notice is an essential part of the reasonableness calculus in judging searches and seizures under the Fourth Amendment. The Federal Public Defender has argued that this constitutional notice requirement supports Judge Hubel’s determination that the copy of the warrant and receipt (what the parties refer to as notice) must be provided to the subscriber to the e-mail account, rather than just to the ISP. The notice must be provided to the subscriber because the ISP “has a far lesser privacy interest in the content of its subscriber’s e-mails than the subscribers themselves.” (Amicus Br. (# 28) 21.)

This argument fails to take into account the third party context in this case. If a suspect leaves private documents at his mother’s house and the police obtain a warrant to search his mother’s house, they need only provide a copy of the warrant and a receipt to the mother, even though she is not the “owner” of the documents. See Fed.R.Crim.P. 41(f)(1)(C) (stating that the officer executing the warrant “must give a copy of the warrant and a receipt … to the person from whom, or from whose premises, the property was taken”). In such a case, it is irrelevant that the suspect had a greater privacy interest in the content of the documents than did his mother. When he left the documents in her possession he no longer has a reasonable expectation of privacy in their contents. See California v. Greenwood, 486 U.S. 35, 41 (1988) (holding that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties” (quoting Smith v. Maryland, 422 U.S. 735, 743-44 (1979))); see also United States v. Miller, 425 U.S. 435, 443 (1976) (“This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” (citing United States v. White, 401 U.S. 745, 752 (1971))). In fact, the suspect in such a case, were he to become a defendant in court, would not have standing to object if there were constitutional deficiencies in the warrant used to search his mother’s home. United States v. Payner, 447 U.S. 727, 731-32 (1980) (holding that a defendant had no standing to object to the illegal seizure of his financial records from his banker); see also Rawlings v. Kentucky, 448 U.S. 98, 105-06 (1980) (holding that defendant did not have standing to object to search of a third party’s purse, despite the fact that he claimed ownership of the drugs found in that purse, because he had no legitimate expectation of privacy in someone else’s purse); Rakas v. Illinois, 439 U.S. 128, 149 (1978) (holding that defendants could not make a Fourth Amendment claim regarding a search of someone else’s car because they had no “legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers”).

Similarly, in the third party subpoena context, the “general rule [is] that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant, even if a criminal prosecution is contemplated.” Miller, 425 U.S. at 444. In Miller, the Court held that bank records obtained from a bank pursuant to a subpoena were admissible against the bank depositor whose records had been seized. Id. at 445. The Court first determined that the depositor had no legitimate expectation of privacy in the records because they were instruments used in commercial transactions and the information was “voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.” Id. at 442-43. When no expectation of privacy was found, the court applied the general rule for third party subpoenas, affirming the district court’s denial of the motion to suppress the bank records. Id. at 444-45.

Here, the defendants voluntarily conveyed to the ISPs and exposed to the ISP’s employees in the ordinary course of business the contents of their e-mails. The Google privacy policy explicitly states that Google will share personal information of its subscribers when it has “a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to … satisfy any applicable law, regulation, legal process or enforceable governmental request.” … Thus subscribers are, or should be, aware that their personal information and the contents of their online communications are accessible to the ISP and its employees and can be shared with the government under the appropriate circumstances. Much of the reluctance to apply traditional notions of third party disclosure to the e-mail context seems to stem from a fundamental misunderstanding of the lack of privacy we all have in our e-mails. Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.

In this third party context, the Fourth Amendment notice requirement is satisfied when a valid warrant is obtained and served on the holder of the property to be seized, the ISP. In this case, the ISPs were served with the warrants to obtain the relevant e-mails. The requirements of the Fourth Amendment were satisfied.

Defendant’s argument that “flats” were not firearms “receivers” such that there was no probable cause for the search warrant was not enough to show that the warrant was issued without probable cause. On the totality of circumstances, it was issued with probable cause. United States v. Prince, 593 F.2d 1178 (10th Cir. 2010):

To resolve the question of whether the investigating officers had probable cause to search Prince’s residence, we need not decide whether the flats delivered to Prince’s home constituted “firearms” under federal law. We conclude that the totality of the evidence recounted in Williamson’s affidavit, aside from Williamson’s legal characterization of the flats, substantially supported the conclusion that there was a “fair probability that contraband or evidence of a crime” would be found in Prince’s residence. Gates, 462 U.S. at 238. Of particular note were the items Williamson observed in Prince’s garage, including “full auto parts” and “parts kits”, a receiver for an Uzi-type firearm, bags labeled full auto parts that appeared to be for an Uzi-type firearm, Prince’s own statements that he purchased firearms for resale and had recently sold ammunition at a gun show, and Williamson’s subsequent investigative efforts that revealed that Prince did not have a federal firearms license and had not officially registered any firearms in his own name. This evidence, considered together, amply supported Williamson’s suspicion that Prince was manufacturing firearms, particularly machineguns, and reselling those firearms at gun shows, and that further evidence of this crime could be found inside Prince’s residence. Thus, we conclude Williamson’s purported “mistake of law” in characterizing the flats alone as “firearms” did not fatally “taint” Williamson’s affidavit or the ensuing search warrant.

911 hangup call led police to defendant’s house and talking to his girlfriend who consented to the entry by the police. United States v. Risner, 593 F.3d 692 (7th Cir. 2010)*:

We agree with the district court that Dean impliedly consented to the police entering her home on both occasions. Regarding the first entry, Dean called the police. Although she hung up before speaking with the dispatcher, she willingly spoke with Dulin when he arrived on the scene. She told him that she had called 911 because Risner had attacked her and threatened her life. She also told him that Risner was armed and where he was hiding in the house. Any reasonable person would infer from Dean’s communications that she consented to the police entry into her home to arrest Risner. In fact, we have trouble imagining why Dean would have provided Dulin such information if she was not actually requesting that the police enter her home and arrest Risner.

Officers stopped defendant based on calls that he had been threatening others with a gun. When stopped, they saw a gun. That was probable cause for a search. United States v. Sir, 2010 U.S. Dist. LEXIS 8743 (W.D. Tenn. February 2, 2010)*, USMJ’s R&R United States v. Sir, 2009 U.S. Dist. LEXIS 124473 (W.D. Tenn. December 22, 2009).*

Before an arrest warrant issued for a dirty UA, the officer does not first have to establish that the test was not flawed. United States v. Truette, 2008 U.S. Dist. LEXIS 112209 (N.D. Fla. June 6, 2008).*

Defendant had standing to challenge the search of his tax preparer’s office for his tax returns because he has a reasonable expectation of privacy. The warrant as to him was general. People v. Gutierrez, 222 P.3d 925 (Colo. 2009), Court’s syllabus:

The Colorado Supreme Court holds that the trial court properly suppressed evidence obtained pursuant to an unlawful search of defendant Gutierrez’s tax returns and supporting documentation, which were found in his client file police seized from his tax preparer’s office. First, Gutierrez has standing under the Fourth Amendment to object to a search of his client file. A taxpayer has a reasonable expectation of privacy in his or her tax returns and return information, even when that information is in the custody of a tax preparer. This reasonable expectation of privacy is based on federal and state laws that protect the confidentiality of tax returns and return information. Second, Gutierrez’s client file was searched in violation of the Fourth Amendment. The affidavit supporting the warrant did not name Gutierrez or refer to him in any way and therefore failed to establish individualized probable cause to search his client file. Finally, the good faith exception to the exclusionary rule does not apply in this case because the affidavit supporting the warrant was so lacking in indicia of probable cause to search Gutierrez’s file that no reasonably well-trained officer could have relied upon it. Therefore, suppression of the evidence was appropriate.

News stories: Greeley Tribune, Law Week Colorado, AP.

Electric company had right to investigate theft of electricity, and taking a cop along did not make it a law enforcement search. United States v. Sanchez-Paz, 2009 U.S. Dist. LEXIS 115723 (M.D. Fla. November 24, 2009)*:

Here, law enforcement obviously knew of and acquiesced in Progress Energy’s inspection of the meter at 3630 Twisted Oak Court. The inquiry then focuses on the second requirement, that is, whether in conducting the search Progress Energy was motivated by assisting law enforcement or by furthering its own legitimate interests.

Progress Energy has a legitimate business interest in ensuring that its electricity is not stolen. It has a lawful right to enter the premises of its customers to inspect and maintain its meters and make sure that its meters are not being circumvented. It would not be unusual for these inspections to take place after receipt of a tip that electricity was being stolen, whether that tip comes from an anonymous citizen or from the police. When a tip is received from the police, Progress Energy’s inspector does not thereby become an agent of the police.

Here, while Detective Angulo did enter upon the property, he did so only after Farrans requested Angulo to do so and went only so far as necessary to keep Farrans and the pit bulls in sight for Farrans’ safety. This limited involvement on the part of Detectives Angulo and Edmiston does not make them participants in the search, or Farrans their agent.

Defendant’s arrest in his doorway did not justify a protective sweep of the premises under Buie. Moreover, the facts did not support a protective sweep because the police had no evidence to believe that there were others in the defendant’s mobile home, just because he would not tell the police that there was somebody else inside when they asked because he was yelling incoherently. United States v. McCants, 664 F. Supp. 2d 620 (D. S.C. 2009):

While the Supreme Court has recognized that there is a necessary balance between one’s right to privacy and the need for law enforcement officials to ensure their own safety, the Supreme Court has consistently shown a heightened regard for the right to privacy in one’s home. The Government can cite to no precedent, and this Court is aware of none, where any court has held that the arrest of a suspect near the door of a residence automatically allows police to circumvent the warrant requirement (and even the information burden necessary to conduct a protective sweep) and gain the ability to “sneak a peek” inside the residence in question. In fact, some courts have implicitly held the exact opposite. See, e.g., United States v. Stover, 474 F.3d 904, 911 (6th Cir. 2007) (“[D]uring a search incident to an arrest occurring inside a home, officers may ‘as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could immediately be launched.'”) (quoting Buie, 494 U.S. at 327) (emphasis added). Furthermore, several of the guns were not only inside Defendant’s trailer, but inside a closet within the trailer. This, then, went beyond merely looking around to ensure the safety of the officers because they assert Defendant was arrested in very close proximity to the front door. Instead, officers, who lacked probable cause and had no search warrant, walked into Defendant’s trailer through the front door and proceeded to search the entire residence, including closed closets.

The search of defendant’s car could not be justified by the government as a search incident where defendant was handcuffed and in a police car or by inventory, but it could be justified by probable cause. United States v. German, 664 F. Supp. 2d 614 (D. S.C. 2009).*

While defendant’s stop was justified, his questioning after his paperwork came back “clear” was unreasonable, and the motion to suppress should be granted. United States v. Brantley, 2009 U.S. Dist. LEXIS 101307 (E.D. Tex. September 24, 2009)*:

But, after he issued the warning and had clear returns at 9:50 p.m., Sgt. Hemmenway did not inform Defendant or his passenger that they were free to leave. Instead, he detained them further, asking for consent to search, inquiring about illegal drugs in the car, and informing them that they must wait for a K-9 unit to perform an open-air dog sniff.

Therefore, the principal issue before the Court is whether Sgt. Hemmenway had reasonable suspicion to continue detaining Defendant after clearing his driver’s license and vehicle registration at 9:50 p.m. The K-9 unit did not arrive until approximately 19 minutes later.