Reconceiving the Fourth Amendment and the Exclusionary Rule by Craig Bradley, Indiana University School of Law-Bloomington, Criminal Law Symposium, Chicago-Kent Law Review, 2010: Abstract:

In Herring v. United States, the Supreme Court indicated both that it was undertaking a major revision, essentially an abolition, of the exclusionary rule and at other times, including in its stated holding, suggested that it was only reducing the rule’s force in a minor way. This article reconceives the exclusionary rule in light of the reasonableness language of the Fourth Amendment. It argues that the best approach to exclusion, unlike the Court’s past approach, or its proposal in Herring, is to exclude evidence only when there is a violation of the Court’s Fourth Amendment rules and that violation is “unreasonable” or negligent on the part of police. This compromise would eliminate much of the conservative opposition to the rule while maintaining it as an effective deterrence to police misconduct.

Public Interest(s) and Fourth Amendment Enforcement by Alex Reinert of Benjamin N. Cardozo School of Law, Yeshiva University, to be published in the University of Illinois Law Review. Abstract:

Fourth Amendment events – the recent arrest of Harvard professor Henry Louis Gates, Jr. is one of many examples–-generate substantial controversy among the public and in the legal community. Yet there is orthodoxy to Fourth Amendment thinking, reflected in the near universal assumption by courts and commentators alike that the Amendment creates only tension between privately-held individual liberties and public-regarding interests in law enforcement and security. On this account, courts are faced with a clear choice when mediating Fourth Amendment conflicts: side with the individual by declaring a particular intrusion to be in violation of the Constitution or side with the public by permitting the intrusion. Scholarly literature and court decisions are accordingly littered with references to the “costs” to society of enforcing the Fourth Amendment in favor of individual claimants. Taking the “public interest” seriously in this framework predictably favors government intrusions.

This Article challenges this dichotomous approach to Fourth Amendment interpretation by identifying a new dimension of the public’s interest: important collective values that are in harmony rather than in tension with individual liberties. The multidimensional approach advanced here recognizes that there are many kinds of public interests, some of which are advanced and some of which are impeded by Fourth Amendment intrusions. Drawing on First Amendment and Due Process Clause jurisprudence, empirical data, and historical materials, this Article uses as examples two categories of collective interests – participatory pluralism and efficient and accurate administration of the criminal justice system – that are implicated by Fourth Amendment questions, but are ignored by the Court’s current jurisprudence. If the Court is to take the public’s interest seriously, it needs a Fourth Amendment jurisprudence that takes account of these interests, among others, and acknowledges the reality that the “public interest” is multifaceted.

Fourth Amendment does not apply to a shooting where the person shot by a Border Patrol officer fled into Mexico and died. He was never apprehended by officers. Rodriguez v. United States, 2010 U.S. Dist. LEXIS 9177 (S.D. Cal. February 3, 2010):

Here, after being shot, Rodriguez ran across the border to Mexico. Once in Mexico, he was transported to a Red Cross Hospital in Tijuana, where he later died. Thus, there is no dispute that Rodriguez was never apprehended or in the custody of Defendant Campos or any other U.S. law enforcement officer. Based on these undisputed facts, Defendant Campos did not search or seize Rodriguez, and the Fourth Amendment is not implicated. To rule otherwise would mean that the Fourth Amendment applies whenever someone is shot by federal law enforcement. But the Supreme Court has held that the Fourth Amendment covers “only ‘searches and seizures’….” County of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998). And the Supreme Court has also clarified that the amendment does not cover attempted seizures. California v. Hodari D., 499 U.S. 621, 626 n.2, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991). Because this case did not result in an actual seizure, Plaintiffs’ contention that this Court committed clear error lacks merit.

Defendant’s stop was with reasonable suspicion from an unproved but identified and corroborated CI. Then a drug dog was called in, and the ten minute delay was reasonable. United States v. Smith, 2010 U.S. Dist. LEXIS 9468 (D. Minn. February 4, 2010).*

Password protect your phone to give a reasonable expectation of privacy

If your cell phone is password protected, you should have a reasonable expectation of privacy in it, in those jurisdictions that think that a cell phone can be searched incident to an arrest. EFF Asks Court to Suppress Evidence Illegally Gathered From Password-Protected Phone:

Our cell phones aren’t just for calls anymore. They hold our address books, our calendars, our emails, and our grocery lists. They may even include things like a list of questions to ask your doctor, pictures of your girlfriend, or URLs of web sites you’ve visited. When can police search your phone and look at all this information?

That’s the question that EFF is asking a court in California to consider. In People v. Taylor, police in Daly City, California seized a suspect’s iPhone during his arrest. Hours later, investigators bypassed the password and searched through the data on the device without a search warrant. After the officers realized that the information was too extensive to write down, they finally obtained a warrant to search the phone. (hyperlink in original)

Fourth Amendment Federalism and the Silencing of the American Poor by Andrew E. Taslitz of Howard University School of Law, to be published in Chicago-Kent Law Review. Abstract:

In a recent case, Virginia v. Moore, the United States Supreme Court held that it was irrelevant under the Fourth Amendment that police made an arrest contrary to a state statute prohibiting arrest for certain minor violations. In doing so, the Court declared that the Fourth Amendment may not vary from “place to place.” This paper takes issue with that statement, both as being descriptively incorrect given contrary precedent and as being unwise constitutional policy. Specifically, the paper argues that poor, urban, racial minorities are ill-represented on matters of state criminal justice policy and lawmaking, though they receive better representation of their views at the local level. To allow the state to bar arrests for minor offenses but to provide no remedy grants police discretion to violate the statute with impunity – violation most likely to be visited upon precisely the groups with the least political representation at the state level. That limited power, moreover, means that ordinary political mechanisms will not work to right this balance. Moreover, those groups most hurt by the state legislation are most likely to favor therapeutic over punitive approaches to crime. By disempowering these groups, the Court thus further amplifies excessively punitive punishment philosophies. To let the state recognize that its interest in arrest for minor offenses is too small to justify an arrest yet to ignore that conclusion in engaging in Fourth Amendment reasonableness balancing is thus to magnify existing criminal justice policy distortions and to undermine voice for those most affected by such distortions. The article ends with a response to seven likely objections to the argument.

In a case from three days ago in Texas, the court started with [what I consider] the [faulty] premise that applicability of the good faith exception should be discussed first, and then whether the warrant was issued with probable cause under Gates. The result here is a tortured opinion of search and seizure issues as they relate to good faith, thereby making the case far more difficult to decide. In one-fourth the time, the court could have found the affidavit for the search warrant satisfied Gates because of the informant’s rich detail of buying cocaine from defendant’s house, which he then took the police to, especially given the presumption of validity of a search warrant. The search warrant application was not “bare bones,” so the GFE applies. United States v. Campos, 2010 U.S. Dist. LEXIS 11037 (N.D. Tex. February 9, 2010).*

Defendant was not in custody and not advised of his right to refuse a consent search, which he had no right to anyway. Consent was valid. United States v. Wilke, 2010 U.S. Dist. LEXIS 10937 (E.D. Wis. February 9, 2010).*

Defendant who did not challenge the search of his property cannot challenge the statements after the search as a product of an illegal search. United States v. Mwangi, 2010 U.S. Dist. LEXIS 10955 (N.D. Ga. January 15, 2010).*

Defendant’s failure to immediately stop for a traffic offense that had occurred in a high crime area, coupled with his furtive gesture in the car, was reasonable suspicion for a patdown. United States v. Wilke, 2009 U.S. Dist. LEXIS 124792 (E.D. Wis. December 21, 2009).*

There was only a qualified right of access to search warrant materials under statute and the First Amendment, and the district court did not abuse its discretion in not opening the materials when the murder investigation was still ongoing and no one had been arrested. In Re: Search Warrants Issued in Connection with the Investigation into the Death of Nancy Cooper, COA08-1280 (October 6, 2009:

We hold that the trial court properly sealed all the search warrants at issue in this case. A motion to seal search warrants and related documents is usually made when the government applies for the warrant. Baltimore Sun, 886 F.2d at 65. As stated in the 2008 Administrative order, law enforcement officers may notify the District Attorney’s office to obtain a motion and order to seal a search warrant at the time the affidavits and applications for search warrants are submitted to the trial court. However, as in the present case, a trial court judge may issue an ex parte sealing order at his discretion.

It is appropriate to seal such documents “when sealing is ‘essential to preserve higher values and is narrowly tailored to serve that interest.’” Id. At the time the probable cause affidavits were submitted and search warrants were issued, no suspect had been arrested in connection with Nancy Cooper’s homicide. Disclosure of the information contained in the affidavits and search warrants, as the trial court included in the order, would have been “premature, since the homicide investigation [was] ongoing and no perpetrator ha[d] been charged.”

If the trial court “decides to close a hearing or seal documents, ‘it must state its reasons on the record, supported by specific findings.’” In Re Washington Post, 807 F.2d 383, 391 (4th Cir. 1986) (quoting Knight Publishing Co., 743 F.2d at 234). The trial court “may explicitly adopt the facts that the government presents to justify sealing when the evidence appears creditable. But the decision to seal the papers must be made by the judicial officer[.]” Baltimore Sun, 886 F.2d at 65. The United States Supreme Court has “emphasized that the interest to be protected by closing trial proceedings [or sealing search warrants] must ‘be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.’” Id. at 65 (quoting Press-Enterprise, 464 U.S. at 510, 78 L. Ed. 2d at 638). “[C]onclusory assertions are insufficient to allow review; specificity is required.” Id. at 66.

The CI was not sufficiently involved with law enforcement activities to be a government agent for Franks purposes. United States v. Krall, 2009 U.S. Dist. LEXIS 95027 (E.D. Pa. October 9, 2009):

The Third Circuit has not articulated a standard for determining whether an individual is acting as an agent or instrument of the Government. Jackson, 617 F. Supp. 2d at 325. However, eight other Circuit Courts of Appeals have applied the following test or a close variant: (1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends. Id.; see also United States v. Ginglen, 467 F.3d 1071, 1074 (7th Cir. 2006); United States v. Alexander, 447 F.3d 1290, 1295 (10th Cir. 2006); Jarrett, 338 F.3d at 344-45 (4th Cir. 2003) (combining the two elements into “one highly pertinent consideration”); United States v. Steiger , 318 F.3d 1039, 1045 (11th Cir. 2003); United States v. Young, 153 F.3d 1079, 1080 (9th Cir. 1998); United States v. Jenkins, 46 F.3d 447, 460 (5th Cir. 1995); United States v. Malbrough , 922 F.2d 458, 462 (8th Cir. 1990); United States v. Lambert, 771 F.2d 83, 89 (6th Cir. 1985) (“First, the police must have instigated, encouraged or participated in the search. Second, the individual must have engaged in the search with the intent of assisting the police in their investigative efforts.”) (citations omitted).

Defendant had no standing in a “drug house.” United States v. Grant, 2009 U.S. Dist. LEXIS 95076 (S.D. Ohio August 28, 2009):

The uncontradicted evidence indicated that the house at 617 Edison Street was uninhabited and used only as a place to carry on drug transactions. In other words, 617 Edison was a “drug house”. Mr. Grant has provided no evidence that anyone lived in the house or kept any personal property in the house. There is certainly no evidence that Mr. Grant lived in the house or was even temporarily staying in the house, or that he ever so much as spent the night in house. Finally, there is no evidence that anyone, particularly Mr. Grant, kept any personal property in the house. Simply stated, there is no evidence that Mr. Grant was ever in the Edison Street house for personal purposes and therefore he had no privacy interest in the house. Because Mr. Grant had no privacy interest in the 617 Edison Street house, he had no standing to bring a Fourth Amendment challenge to the search of the premises. Therefore, his counsel’s failure to challenge the search did not rise to the level of ineffective assistance of counsel. Mr. Grant’s ineffective assistance of counsel claim as to the search of the Edison Street house should be denied.

“Having reviewed the dash-cam video and the transcript of the state-court suppression hearing, it is the Court’s determination that Garcia did not violate §§ 66-7-330(B) and 66-7-345(C) NMSA (1978) and that Haanes mistakenly believed that Garcia was in violation of the traffic laws. The language of both traffic statutes is plain and unambiguous, and it was not objectively reasonable for Haanes to justify a valid traffic stop of Garcia. See United States v. Valadez-Valadez, 525 F.3d at 991.” United States v. Garcia, 2009 U.S. Dist. LEXIS 94609 (D. N.M. September 10, 2009).*

Arrest for a felony does not need an arrest warrant, even if there is time to get one. Defendant had prior experience with the criminal justice system, and that is a circumstance favoring consent. United States v. Henderson, 2008 U.S. Dist. LEXIS 110370 (E.D. Mo. November 12, 2008).*

There clearly was PC for a search warrant for defendant’s DNA after DNA from a burglary tool resulted in a CODIS hit. The search warrant was for a confirmation. State v. Norman, 2009 Ohio 5458, 2009 Ohio App. LEXIS 4595 (4th Dist. October 8, 2009)*:

[*P29] Here, we find that Detective Rourke’s affidavit supports a finding of probable cause. In relevant part, the affidavit states the following: “The tire tool and mask were collected as evidence and submitted to OHIO BCI for analysis. A DNA profile was established from the tire tool and entered into CODIS, a DNA database. On 11/26/07 Ohio BCI notified detective that a hit was received on the profile to Brian M. Norman ***, who is currently incarcerated at Chillicothe Correctional Institute. Detective is seeking to personally obtain oral swabs from Brian Norman to confirm the DNA match.”

[*P30] This is not one of the difficult cases contemplated by Ventresca. On the contrary, it would be hard to find a more clear-cut case of an affidavit supporting probable case. In his affidavit, Detective Rourke stated that a division of the Ohio Attorney General’s Office (Ohio BCI) notified him that Norman’s DNA profile matched the DNA profile linked to the robbery. Therefore, the affidavit clearly establishes circumstances that warrant suspicion. And Norman’s highly speculative arguments about BCI and Detective Rourke fall far short of demonstrating any error, let alone plain error, in the trial court’s denial of Norman’s motion to suppress.

The officer stopped defendant’s car for suspicion of DUI based on a dispatch report where the caller was also following defendant’s car describing what it looked like and what was going on. State v. Greer, 2009 Ohio 5351, 2009 Ohio App. LEXIS 4507 (8th Dist. October 8, 2009):

[*P22] In this case, the dispatch tapes were admitted and established that the informant was a female who was observing defendant’s erratic driving firsthand during the course of the 911 call. The recordings also reflect that the informant observed the police following the subject vehicle. The informant was able to identify the type and color of defendant’s vehicle and his course of travel. Officer Kroczak confirmed the stop occurred moments after the informant’s call. It also appeared to Officer Kroczak that defendant was attempting to evade her by driving through a parking lot for no apparent purpose. In addition, upon approaching the vehicle, Officer Korczak noticed defendant’s “eyes were very bloodshot, red, his speech and his motions were slow *** The odor of the alcohol was strong.” His speech was slurred and his eyes were “glossy looking.” Immediacy and personal observation led to further credibility and greater reliability. Maumee, 87 Ohio St.3d at 302.

Defendant’s stop was effectively over, and he consented to further questions. United States v. Velazquez, 2009 U.S. App. LEXIS 22743 (10th Cir. October 16, 2009) (unpublished)*:

We agree with the district court that we are bound by our precedent to conclude that Mr. Velazquez’s discussion with Trooper Ranieri, after receiving his warning, was consensual. The district court found that Trooper Ranieri returned Mr. Velazquez’s documentation, told him to take care, walked briefly away from the vehicle, and then stepped forward again before asking Mr. Velazquez if he had anything illegal in the car. Although Trooper Ranieri did not specifically inform Mr. Velazquez that he was free to leave, he did say, “You guys take care. Thanks for your time” and took a few steps away from the car. We cannot say that any of these factual findings was clearly erroneous, and we have repeatedly found facts along these lines sufficient to suggest an end to the traffic stop detention and sufficient to signal that subsequent conversation with the officer is consensual. See, e.g., United States v. Ledesma, 447 F.3d 1307, 1315 (10th Cir. 2006) (“Phrases like ‘thank you’ and ‘have a safe one’ signal the end of an encounter, and afford a defendant an opportunity to depart. Although [the officer] did not explicitly inform [the defendant] and her passenger that they were free to leave, [his] words of farewell suggested that any subsequent discussion was consensual.”); United States v. Wallace, 429 F.3d 969, 975 (10th Cir. 2005) (initial detention transformed into a consensual encounter when trooper returned driver’s paperwork, issued a citation, and said, “That’s all I’ve got”); Anderson, 114 F.3d at 1064 (detention became consensual when trooper handed driver a warning citation and returned his papers, even though trooper did not tell driver he was free to go); United States v. Elliott, 107 F.3d 810, 814 (10th Cir. 1997) (detention ended and encounter became consensual when officer returned documentation, even though officer never told driver he was free to go); United States v. Werking, 915 F.2d 1404, 1409 (10th Cir. 1990) (because initial detention ended when officer returned license and registration, subsequent questioning was consensual, even if officer did not tell driver he was free to go).

Massachusetts has a Pandemic Response Bill before the legislature that provides for forced quarantine of persons and places in case of a severe health risk and arrest of those not vaccinated where a health risk is shown. See Swine flu vaccine–get the shot or else? on Examiner.com.

The bill, called the Pandemic Response Bill, gives the state power to “forcefully quarantine people in the event of a pandemic”, and threatens that “anyone who refuses to comply with the quarantine order could face jail time or a $1000 per day fine”.

What does this translate to? It could mean that local law enforcement would have the right to go door to door, checking shot records and locking people up who are either infected or did not receive the vaccine. Of course this scenario seems a bit absurd, but perhaps so is the idea of imprisonment or stiff fines for people who are not vaccinated. Critics of the bill complain that this is not only a violation of basic constitutional rights of privacy (i.e. the Fourth Amendment which protects from unlawful search and seizures, or the Fifth Amendment which allows for due process), but may, as in the case of religions who prohibit the use of vaccines, pose unethical infringement on the basic freedom of religion this country was founded on. Furthermore, many are finding success with natural treatments such as nutrition, herbs and homeopathy, and prefer not to risk the side effects of a vaccine for a relatively benign disease.

The article, originating in Florida, mentions Fla. Stat. ch. 381 which provides for public health emergencies and quarantine of persons and premises. I imagine most states have similar statutes already in effect.

Under the T.L.O. special needs exception, it seems apparent to me that such entries would be reasonable at their inception. Whether they are reasonable in practice remains to be seen.

Whenever a conservative complains about the Fourth Amendment, I always remind them that the Nixon-Reagan-Bush Supreme Court is generally responsible for that they are complaining about.

Copyrighted. See Dilbert.com

ACLU of No. CA sues over DNA sampling on arrest in CA

The ACLU of Northern California has sued over the constitutionality of California’s 2004 Proposition 69 mandating DNA sampling of certain arrestees which went into effect on January 1, 2009. See DNA Profiling: You May Be Next, by Patrick Kollman:

Proposition 69, passed in 2004, made California one of now 21 states that require DNA sampling for some arrestees. This voter-approved initiative mandated that this extend to all felony arrestees by Jan. 1, 2009—and the legal backlash has already begun.

Chicago Traffic Aide arrested for ticketing a cop car gets $1.553M verdict

In the Chicago Sun-Times: Traffic aide awarded more than $1 million in arrest for ticketing cop’s car:

A city employee was awarded more than $1 million by a jury Friday in a wrongful arrest and conspiracy case stemming from a 2006 arrest in which she refused to rescind a parking ticket issued on a police officer’s car.

On Friday a jury found in favor of Jacqueline Fegan and awarded her $1.553 million in damages, according to a release from the law office of Tobin, Petkus & Munoz. With court costs and legal fees, the decision could end up being more than $2 million.

She didn’t even ticket the car–she refused to rescind a ticket issued by a subordinate. Sounds like a really pissed off jury. I can just see the closing argument about the abuse of power for arresting a city employee for contempt of cop for refusing to be bullied.

Boilerplate motion to suppress should be denied for failing to specify what was illegally seized and how. This search was by search warrant and it was presumptively valid. United States v. Jones, 2009 U.S. Dist. LEXIS 112286 (D. Minn. October 30, 2009):

Moreover, the Defendant has not identified the evidence, that was secured by the Search Warrant, should be suppressed, nor has he offered any factual or legal grounds for suppression. Having so failed to satisfy his burden of production, we recommend denying his Motion to Suppress on that basis alone. See, e.g., United States v. Mims, 812 F.2d 1068, 1074 (8th Cir. 1987) (On a Motion to Suppress telephonic interceptions, the defendant’s failure to “assert what may have been wrong with the interceptions, or in fact, even what interceptions that he [was] concerned with,” justified the District Court’s decision to deny the Motion without the conduct of an Evidentiary Hearing); see also, United States v. Quiroz, 57 F. Supp.2d 805, 822-23 (D. Minn. 1999) (“boilerplate motion” to suppress statements denied due to failure to satisfy specificity requirement). Nonetheless, in an abundance of caution, we proceed with addressing the merits of the Defendant’s Motion by considering the probable cause detailed in the Warrant’s supporting papers, and by examining for any other fatal deficiencies in the Warrant. See, United States v. Edwards, supra at 995. As we detail below, no basis to suppress the evidence obtained by the warranted search and seizure has been established, and therefore, we recommend that Jones’ Motion to Suppress be denied.

Defendant failed to show that the SW was issued without probable cause. The reference in the motion to timeliness was apparently boilerplate, and it was rejected as well. United States v. Brooks, 2007 U.S. Dist. LEXIS 98921 (E.D. Tenn. November 29, 2007).*

SW for a particular room in a motel was constitutionally sufficient. [Why argue this?] United States v. Patterson, 2007 U.S. Dist. LEXIS 98923 (N.D. Ga. June 27, 2007).*

Second entry to seize a gun was not a flagrant violation of the Fourth Amendment, so the gun would not be suppressed. United States v. Ramage, 2009 U.S. Dist. LEXIS 111639 (N.D. W.Va. July 13, 2009)*:

There are three factors that are relevant and which must be considered by the Court in determining whether the primary taint has been purged: “1) the amount of time between the illegal action and the acquisition of the evidence; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the official misconduct.” Id. citing Brown v. Illinois, 422 U.S. 590, 604-604, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). “The burden of showing admissibility rests … on the prosecution.” United States v. Seidman, 156 F.3d 542, 548 (4th Cir. 1998).

Applying the first Brown factor, very little time could have elapsed between Deputy Gearde’s unlawful entry into the Ramage home and when Mrs. Ramage escorted him to the upstairs bedroom and showed him where the gun was located. However, suppression is not necessarily warranted in the face of the lack of a significant intervening period of time. “[T]he Brown test does not require that each of the factors set forth be resolved in favor of the Government.” United States v. Wellins, 654 F.2d 550, 554 (9th Cir. 1981). This is particularly the case where as here the second and third factors weigh heavily in favor of admissibility.

With respect to the second Brown factor, Melissa Ramage’s actions in regard to Deputy Gearde and the gun after the unlawful entry constitute significant intervening circumstances. She was engaged in conversation with Deputy Gearde concerning whether a gun was located in the residence. She indicated to the deputy sheriff that a gun was in a box in her bedroom. When the deputy sheriff asked her if he could go retrieve it, she declined reasoning that her house was a mess. When the deputy sheriff insisted and suggested they go together, she agreed by leading him upstairs directly to the box and gun under the bed. After the unlawful entry into the home, Melissa Ramage never once asked the deputy sheriff to leave.

Finally, with respect to the third Brown factor, the evidence shows that Deputy Gearde only opened the screen door and stepped across the threshold of the Ramage front door to engage the two women who had been watching the events outside through the front windows. While the purpose of coming back and entering the house was to assure that a firearm was not present, the deputy was still processing a domestic call; did not want the husband returning to the house if a firearm was present for fear that the initial dispute would again flare up and deteriorate into a violent episode; and did not have any knowledge or reasonable suspicion that a gun was present. The entry was not made for the purpose of retrieving a firearm that Deputy Gearde had earlier been told was present (when he first talked to Mrs. Ramage) but did not seek to seize until he later learned from his fellow deputy that Defendant Ramage was a convicted felon prohibited from possessing a firearm. The second entry was not made in flagrant disregard of Defendant’s Fourth Amendment rights.

Accordingly, the Court concludes that the United States has carried its burden of proving that the evidence discovered (the scoped gun and ammunition) was acquired “sufficiently independent of the unlawful invasion to purge any taint arising from the initial entry.” United States v. Seidman, supra at 549-550.

On Law.com by Tony Mauro: White House Said to Have Short List Ready for Justice Stevens’ Slot, based on more speculation of Stevens’ coming retirement, as noted in an interview in The New Yorker.

A woman arriving from Manila was jailed in for five days when a Melbourne, Australia drug dog detected amphetamine in her luggage on her arrival. It was tea; no drugs. She was awarded AUS$5,000.

The U.S. Supreme Court (SCOTUS) updated its website yesterday, also giving it search capability.

San Gabriel Valley Tribune: Recent DUI checkpoints produce many car seizures but few DUI arrests; 176 car impoundments, 6 DUI arrests.

In this week’s The New Yorker: After Stevens, What will the Supreme Court be like without its liberal leader? by Jeffrey Toobin.

Disagreeing with the Tenth Circuit, the Ninth Circuit, on a Gant remand, holds that the good faith exception does not apply under Gant. United States v. Gonzalez, 578 F.3d 1130 (9th Cir. August 25, 2009), reh. den. en banc 2010 U.S. App. LEXIS 5365 (9th Cir. March 16, 2010):

[1] The Government’s assertion is not directly supported by our current case law. The Government relies on the Supreme Court’s recent decision in Herring v. United States, 129 S. Ct. 695 (2009), which applied the good faith exception of United States v. Leon, 468 U.S. 897 (1984), in holding that whether the exclusionary rule should be applied to a search in violation of the Fourth Amendment “turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.” Herring, 129 S. Ct. at 698. Neither the Supreme Court nor our court, however, has applied the good faith exception to the scenario we face: a search conducted under a then-prevailing interpretation of a Supreme Court ruling, but rendered unconstitutional by a subsequent Supreme Court ruling announced while the defendant’s conviction was on direct review. The cases the Government relies on involve application of the good faith exception to searches conducted in reliance on a warrant held invalid following the search; see, e.g., Herring 129 S. Ct. at 698; or a statute or regulation subsequently found unconstitutional during direct review of the defendant’s conviction; see, e.g., Illinois v. Krull, 480 U.S. 340 (1987); United States v. Peltier, 422 U.S. 531 (1975); United States v. Meek, 366 F.3d 705 (9th Cir. 2004).

[2] We conclude, however, that this case should be controlled by long-standing precedent governing the applicability of a new rule announced by the Supreme Court while a case is on direct review. The Court has held that “a decision of this Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered.” United States v. Johnson, 457 U.S. 537, 562 (1982); see Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (finding that even decisions constituting a “clear break” with past precedent have retroactive application). This precedent requires us to apply Gant to the current case without the overlay of an application of the good faith exception. To hold that Gant may not be fully applied here, as the Government urges, would conflict with the Court’s retroactivity precedents.

[3] Such a ruling would undermine the rationale of Johnson and Griffith. As stated in Griffith, “failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.” 479 U.S. at 314. It would violate “the integrity of judicial review” by turning the court into, in effect, a legislative body announcing new rules but not applying them, rather than acting in our proper role as an adjudicative body deciding cases. It also would “violate[ ] the principle of treating similarly situated defendants the same” by allowing only one defendant to be the beneficiary of a newly announced rule. Id. at 322-23. In Gant, the Supreme Court upheld in full the decision of the Arizona Supreme Court, which not only found the search at issue unconstitutional, but ordered the suppression of the evidence found as a result of the unconstitutional search. See Gant, 129 S. Ct. at 1724; State v. Gant, 162 P.3d 640, 646 (Ariz. 2007). Hence, refusal to allow Gonzalez similarly to benefit from the Court’s ruling in Gant through application of the exclusionary rule would implicate the same concerns mandating the Court’s holding in Griffith.

[4] Because both Johnson and Griffith remain binding precedent,we cannot apply the good faith exception here without creating an untenable tension within existing Supreme Court law. We, therefore, hold that evidence derived from the search at issue must be suppressed and reverse Gonzalez’s conviction.

[Hat tip to the Federal Defenders: This was posted on the Federal Defenders of Eastern Washington and Idaho Blog. This case is not yet on Lexis.]

An interesting computer standing case: Similar cases have summarily denied standing before without analysis. Defendant owned one computer and had substantial access to another. He had standing in the one he owned, despite letting others use it. The second computer had his profile set up on it, and he “just barely” had standing in it, but it was subject to easy third party consent. United States v. Trejo, 2010 U.S. Dist. LEXIS 22909 (E.D. Mich. March 12, 2010):

In this case, Trejo had a reasonable expectation of privacy in the content of the first seized computer. The evidence demonstrates that Trejo owned the computer, and while that fact alone is not determinative, it is substantial. The fact that he allowed others to access the computer does not completely diminish his expectation that the contents of the computer would be kept private, at least among his family members and friends of his father’s who used the computer from time to time. … Even though others had access to it, and even though he did not use a password, the Court finds that Trejo has demonstrated enough of an expectation of privacy in the computer to allow him to challenge its search and ultimate seizure.

The case is closer, however, with respect to the second computer, which Rose testified was purchased by Raymond and not owned by the defendant. Ownership, however, is the not the touchstone of standing to challenge a search and seizure. The Supreme Court decided long ago that the Fourth Amendment’s protections do not depend on the parameters of a state’s property law, but rather on whether a person maintains a reasonable expectation of privacy over an object or place. See Katz, 389 U.S. at 361. Ownership may be a factor, but it is not dispositive. Cf. Hunyady, 409 F.3d at 301 (listing the factors a court must consider).

Although Trejo did not own the second computer, he nevertheless maintained a sufficient expectation over the computer and its contents such that he has standing — just barely — to challenge its search and seizure. The computer was located inside his father’s home, in which Trejo permanently resided. A lawful resident of a home, even though not the owner, the Court believes, still has a reasonable expectation of privacy over the contents inside the residence, even if located in common areas. Further, the presence of Trejo’s profile on the computer demonstrate that he had at least some control or ownership interest in the computer, which further supports his expectation of privacy. The Court concludes that Trejo’s expectation of privacy in his father’s computer was one society is prepared to accept as reasonable, even if reluctantly. See Katz, 389 U.S. at 361.

The Court notes that the government has made a strong argument that Trejo did not have expectations of privacy with respect to both computers that would allow him to challenge the seizures. The government states that each computer was made openly available in a common area of the residence owned by his father. Moreover, multiple people, including extended family members and friends, had access to the house and used the computers. The government contends that Trejo was “little more than a house guest with visitor access to a computer contained therein. As such, [Trejo] had no expectation of privacy in [the computers] and does not have standing to object to the search of either computer.” Def. Br. p. 6. Although the government makes a strong argument on this front, the Court ultimately disagrees with it, and finds that the arguments of counsel are more properly considered in the third-party consent context discussed below. Trejo’s permanent residence at Raymond’s home, and use of the computers therein, even though located in a common area and available for use by other guests invited into the home, are sufficient to allow Trejo to challenge the searches.

The Court, therefore, finds that Trejo had a reasonable expectation of privacy in the two computers, sufficient to permit him to challenge the validity of the search and seizure. Cf. Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001) (“Home owners would of course have a reasonable expectation of privacy in their homes and in their belongings — including computers — inside the home.”); United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (“Individuals generally possess a reasonable expectation of privacy in their home computers.”).