Defendant was approached at an Iowa airport after he got off an Interstate bus. The airport was a transfer point to him, and he was not flying. VIPR officers approached him because they thought his red lettered Pirate’s baseball cap and red shoe laces were gang colors. They made him come inside where they had him remove his shirt to photograph tattoos. He was seized and Mendenhall was distinguishable because Mendenhall was encountered in transit in an airport, not removed to the airport for a search. United States v. Wodesso, 2010 U.S. Dist. LEXIS 23535 (N.D. Iowa March 15, 2010).*

Telling the defendant during a traffic stop where he was in the patrol car because of the cold that he was “good to go” was indicative that the rest was consensual. The stop was recorded, and the officer was always respectful toward the defendant who kept talking. United States v. Rodriguez, 2010 U.S. Dist. LEXIS 23541 (W.D. Mich. March 15, 2010).*

Defendant’s detention before probable cause arose was reasonable. United States v. Goetting, 2010 U.S. Dist. LEXIS 23682 (E.D. Ky. March 15, 2010).*

Defendant was not “stopped” by the police. He pulled up to a stop sign and stopped, and he looked in his rearview mirror and saw a police car behind him. He did not move. The officer got out and walked up to him without even putting his lights on. United States v. Harrington, 2010 U.S. Dist. LEXIS 23531 (N.D. Iowa February 17, 2010).*

Child pornography images on a hard drive are not stale after one year. A First Circuit case said three years. Also, deleted images can be recovered from a computer indefinitely. How a computer search should be conducted is not required. United States v. Blake, 2010 U.S. Dist. LEXIS 23014 (E.D. Cal. February 24, 2010)*:

There is no legal requirement that a search warrant include a specification of the precise manner in which the search is to be executed. United States v. Grubbs, 547 U.S. 90, 98, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006). As the Tenth Circuit has explained, while a search warrant must describe with particularity the object of the search, “the methodology used to find those objects need not be described: this court has never required warrants to contain a particularized computer search strategy.” … After a computer search, “[i]t is unrealistic to expect a warrant to prospectively restrict the scope of a search by directory, file name or extension or to attempt to structure search methods – that process must remain dynamic.” …

A pinpoint computer search restricting the search to a particular program or specific search terms is unrealistic. … Nor is a search protocol required to comply with a search warrant. … Defendant relies on United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989, 1006-07 (9th Cir. 2009) (“CDT”). The government distinguishes Comprehensive Drug Testing, as the challenge there was to an allegedly overbroad seizure of evidence held by a third-party. The remedy sought was not suppression of evidence in a criminal case, but return of property in which privacy rights were claimed in a civil proceeding.

The officers in this case did nothing to corroborate the anonymous informant or show his basis of knowledge, so the search lacked probable cause. As to the good faith exception, the defense put on some of the officers’ prior Fourth Amendment violations of others, and the court finds an intentional Fourth Amendment violation under Herring. Alternatively, the search warrant lacked a reasonable basis under Leon. United States v. Young, 2010 U.S. Dist. LEXIS 22035 (C.D. Cal. February 18, 2010):

The Court finds that in this case, the culpability of the officers was high in that they intentionally engaged in conduct prohibited by the Fourth Amendment. The exclusion of the evidence found in the Mountain View residence would provide great deterrence for this wrongful police conduct.

. . .

Even if the Court were to confine its analysis to the good faith exception found in Leon, the Court finds that this exception does not apply in this case. The search warrant affidavit was “so lacking in indicia of probable cause as to render official belief in its existence objectively unreasonable.” As such, the evidence found at the residence will be suppressed at trial.

Defendant consented to the search of his car, based on the audio tape recording of the stop. The subsequent search warrant that was issued was obtained in good faith, the court declining to decide probable cause since none of the exceptions to the good faith exception apply. United States v. Sedillo, 2010 U.S. Dist. LEXIS 21583 (D. N.M. February 19, 2010).*

Pompano Beach PD raided a house yesterday, and a 52 year old grandmother was killed by the SWAT team for not dropping a .357, all based on an anonymous tip:

Deputies shot and killed a 52-year-old grandmother and made several arrests Saturday during a raid on a suspected drug house in Pompano Beach.

Broward Sheriff Al Lamberti said deputies fired at Brenda Van Zwieten after she refused to drop her .357 Magnum handgun. They later found the gun was loaded.

Van Zwieten’s family said she kept the gun out of fear because of a burglary in her home.

The BSO said the investigation began when it got an anonymous tip that Van Zwieten’s home in the 300 block of Southwest 18th Court was a drug house.

BSO’s Selective Enforcement Team gathered evidence and got a search warrant.

BSO’s SWAT team also took part in the raid, Lamberti said.

Privacy is Not Dead, Just Evolving, by Tony Bradley on PCWorld.com today.

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

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.”5 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.

Cell phone SI invalid

In the Santa Cruz, a trial judge ruled that a police search incident of a cell phone violated the Fourth Amendment, apparently gutting the case against the accused. See Judge’s ruling that Blackberry search was improper guts guns, drug case by Cathy Kelly in the Mercury News.

Judge Robert Atack Friday gutted felony gun and drug charges against a Larkin Valley father and son, ruling that deputies erred in looking through the son’s Blackberry during a search of his car.

Atack said the son, 25-year-old Reid Nottoli, had a reasonable expectation of privacy for the device and that a deputy did not have sufficient grounds to invade that privacy.

. . .

The search warrant for the property was obtained largely due to photos of weapons in the Blackberry, including a wallpaper image in which a masked man wearing a white robe was holding two large rifles aloft. Deputy Steve Ryan testified that he believed them to be illegal, semi-automatic weapons.

Obama backs taking DNA on arrest and a national database

President Obama gave John Walsh of America’s Most Wanted an interview where the President mentioned that he favored a national DNA database. See Politico. Some find it terribly invasive.

That genie is already out of the bottle–18 states and the federal government already do it. See my January 16, 2009 post about the federal regulation going into effect from April 2008 legislation.

There already is a national database: CODIS, Combined DNA Index System. CODIS was a part of 1994 legislation, and it became operational in 1998. See Wikipedia.

I thought that anybody who has watched CSI in the last eight years already knew about CODIS. It is always interesting to see people getting irate on just discovering that their rights have been lost years ago.

Pre-Gant search incident was invalid under Gant, so Eleventh Circuit finds good faith exception saves the search. United States v. Davis, 08-16654 (11th Cir. March 11, 2010):

We are not the first court of appeals to consider this question, but the other circuits have split on the issue. In the aftermath of Gant, the Ninth and Tenth Circuits have reached opposite conclusions as to the exclusionary rule’s application in cases like this one. Compare United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009) (applying the exclusionary rule to a pre-Gant search), with United States v. McCane, 573 F.3d 1037 (10th Cir. 2009) (relying on the rule’s good-faith exception and refusing to require the suppression of evidence), cert. denied, No. 09-402 (Mar. 1, 2010). Similarly, before Gant, the Fifth Circuit refused to apply the exclusionary rule when police had relied in good faith on prior circuit precedent, United States v. Jackson, 825 F.2d 853, 866 (5th Cir. 1987) (en banc), but the Seventh Circuit expressed skepticism about applying the rule’s good-faith exception when police had relied solely on caselaw in conducting a search, United States v. 15324 County Highway E., 332 F.3d 1070, 1076 (7th Cir. 2003). We now enter the fray and hold that the exclusionary rule does not apply when the police conduct a search in objectively reasonable reliance on our well settled precedent, even if that precedent is subsequently overturned.

A blogger who gets it: Don’t read the website for the first time until you are prepared to lose some sleep. What the courts are often saying is a bit depressing.

Disconnecting and seizing defendant’s laptop and moving it to the garage while awaiting a warrant was a seizure but not a search, and it was valid under Segura. The warrantless seizure was valid because it was not removed from the house until after the warrant arrived. United States v. Lamb, 2010 U.S. Dist. LEXIS 19899 (N.D. Ky. January 14, 2010)*:

“Different interests are implicated by a seizure than by a search.” Segura v. United States, 468 U.S. 796, 806 (1984). A search affects only a person’s privacy interests; while, a seizure affects only a person’s possessory interests. Id. The Fourth Amendment protects against both unreasonable searches and seizures and requires probable cause for a warrant before any legal search or seizure may take place. Chambers v. Maroney, 399 U.S. 42, 51 (1970). In addition to recognized exceptions to the search warrant requirement, the Supreme Court “has frequently approved warrantless seizures of property, on the basis of probable cause, for the time necessary to secure a warrant, where a warrantless search was either held to be or likely would have been held impermissible.” Segura, 468 U.S., at 806.

Probable Fourth Amendment violation of the police overstaying their welcome did not nullify subsequent search warrant for a suitcase full of cocaine where the police did not search during the stay and the affidavit for the search warrant makes no reference to any view in the house. United States v. Parker, 2010 U.S. Dist. LEXIS 19972 (D. Conn. March 5, 2010)*:

It may be the case that the officers violated Mr. Parker’s rights under the Fourth Amendment. To be clear, the Court does not condone the agents’ behavior in prolonging their warrantless stay in Mr. Parker’s home beyond what was necessary to ensure that no one was in the residence. But where, as here, any Fourth Amendment violation is unconnected to the evidence seized, suppression is unwarranted. See Segura, 468 U.S. at 814; see also Nix v. Williams, 467 U.S. 431, 443 (1984) (“[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred.”).

Controlled buy and subsequent search justified revocation of release. United States v. Jordan, 2009 U.S. Dist. LEXIS 125522 (S.D. Fla. October 22, 2009).*

Defendant was arrested for trespassing at a Wal-Mart, and the officer, with some knowledge defendant might have a firearm or two, conducted a protective weapons search of a 2’x3′ camera case finding drugs. The search incident was invalid because the camera case could not hold a firearm. United States v. Leffler, 2010 U.S. Dist. LEXIS 19046 (D. Neb. February 4, 2010):

The problem, however, for the government in this case, whether analyzed under Gant or Long, is that the search must be limited to those areas in which a weapon may be placed or hidden. Here, the officers’ stated concern was a firearm or the two firearms mentioned in Officer Velasquez’s pass-along book information. It is not logical or reasonable to believe that a firearm was hidden within a 2-inch by 3-inch camera case. Nor was the incriminating character of the camera case immediately apparent.

[Well, couldn’t it hold a really small gun? They exist, and I’ve seen them in court. Maybe the government did not argue it that way, or the guns the officers expected were typical and larger.]

Older information in a search warrant application was “refreshed” by trash pulls a week before and the day of the search warrant. The result of the trash pulls also showed nexus. United States v. Kenney, 2010 U.S. Dist. LEXIS 19012 (E.D. Ky. March 3, 2010).*

Collective knowledge rule applies to reasonable suspicion, and officers here had it. The stop was not extended without reasonable suspicion. United States v. Goins, 2010 U.S. Dist. LEXIS 18951 (W.D. La. February 4, 2010).*

Ties go to the runner, or the government. The court finds the officer deceptive and believes him anyway because of a presumption police officers tell the truth [even when their reports are “deceptive and deficient”]. United States v. Jauregui-Barrajas, 2010 U.S. Dist. LEXIS 19064 (D. Ariz. January 13, 2010)*:

The Court has had difficulty in deciding this case for the following reasons: 1) Agent Bahrychuk’s deceptive and deficient case report; and 2) A lack of reports from any other agents because “it was a routine knock and talk”, which seems to excuse good law enforcement work.

At the heart of the issue is whether to believe Agent Bahrychuk or the Defendant. This time, the Court finds in favor of Agent Bahrychuk because: 1) He could have, and would have, obtained a warrant; and 2) The Court and our legal community have to accept our adversarial system and the honesty of those who have sworn to tell the truth and defend the Constitution.

Is the court holding its nose as it issues this ruling? End justified the means?

It was objectively reasonable for the officer to believe the landlord had the authority to invite him into defendant’s backyard. The landlord discovered drugs outside during routine maintenance and called the police. Defendant then consented to a search of the interior. United States v. Howe, 2010 U.S. Dist. LEXIS 19559 (E.D. Va. March 4, 2010)* [But landlords can’t consent to a search of the rented property. Here they can as to the curtilage.]

Defendant was an overnight guest in a mobile home that he was using as a hideout. That was sufficient to give him standing. The police got good reason to know he was there, and they entered with an arrest warrant. Defendant was handcuffed and officers searched under the couch cushion where he was standing looking for a weapon, which they found. This was a valid search incident. Although handcuffed, it was not inconceivable that he could have reached the weapon. Gant applies only to vehicle search incident. United States v. Bowman, 2010 U.S. Dist. LEXIS 19236 (M.D. Ala. February 5, 2010).*

Defendant worked on a ferry and brought a duffel bag to work. When the ferry landed, it was subject to customs inspection. Defendant remained on the ferry working. Customs officials decided to search his bag. Since he worked in the border area and was not seeking entry, his search required reasonable suspicion. People v. Erskine, 2010 V.I. LEXIS 7 (February 16, 2010):

Employees who are working in a border area are not immune from border searches, but they may only be subjected to a border search when they are leaving the area of the border. United States v. Beck, 483 F.2d 203, 209 (3d Cir. 1974); see also United States v. Glazou, 402 F.2d 8,13 (2d Cir. 1968) (Employees who work in a border area may be subject to a border search when leaving the area). Otherwise, employees could constantly be subjected to searches throughout the day during the normal course of their work. In Beck, a defendant watchman was observed by customs officials carrying a large bag leaving the pier by vehicle. Customs officials stopped the defendant and found stolen items, and the Third Circuit held that the customs officials had reasonable suspicion to conduct a stop and seizure. Id. The Third Circuit reasoned that the search was valid because the defendant was observed leaving the border area and displayed suspicious behavior. Id. On the other hand, in this matter, Officer Milan stated at the suppression hearing that Defendant was on the Ferry when he observed the bag in question and that there was no indication that Defendant was leaving the Ferry or intended to stay in St. Thomas. Consequently, the Court finds that Defendant was not subject to a valid border search in the absence of reasonable suspicion.

Seizure of a “go-fast” boat in international waters without markings, flags, or registry papers is not subject to the Fourth Amendment. United States v. Nueci-Pena, 2008 U.S. Dist. LEXIS 112345 (D. P.R. February 20, 2008):

Second, even if the treaty applies to this case, a defendant charged under MLEA “does not have standing to raise a claim of failure to comply with international law as a basis for a defense,” and such a failure “does not divest a court of jurisdiction.” 46 U.S.C. § 70505. Moreover, to the extent that defendants suggest the seizure of the vessel was unreasonable in violation of the Fourth Amendment, that argument must fail, since “it is pellucid that the Fourth Amendment does not apply to the search of non-resident aliens on a ship in international waters.” United States v. Vilches-Navarrette, 413 F. Supp. 2d 60, 69 (D.P.R. 2006), citing United States v. Verdugo-Urquidez, 494 U.S. 259, 267, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990).

Pre-Gant search incident was valid. The officer smelled marijuana when he stopped the defendant’s car and he could see it with his flashlight. United States v. Cole, 2010 U.S. Dist. LEXIS 18018 (D. V.I. March 1, 2010).*

A firearm found during execution of a valid search warrant was in plain view and it would be temporarily secured. It was also referenced in a black binder which was looked at which defendant claimed attorney-client privilege because it contained some legal matters, but the court found the binder not privileged information. The material in the binder gave separate cause to seize the firearm. United States v. Patel, 2010 U.S. Dist. LEXIS 17548 (M.D. Ala. February 26, 2010), USMJ’s R&R, United States v. Patel, 2009 U.S. Dist. LEXIS 125347 (M.D. Ala. April 1, 2009).*

Defendants carrying a bag of cash in a motel room, avoiding security cameras, and refusing room service was reasonable suspicion. United States v. Molodtsova, 2010 U.S. Dist. LEXIS 17600 (D. Vt. February 25, 2010).*

Three great posts by Orin Kerr on the good faith exception and changing law:

• The Good Faith Exception and Changing Law: The Context of the Good Faith Exception

• The Good Faith Exception and Changing Law: The Benefit of the Exclusionary Rule on Direct Appeal

• The Good Faith Exception and Changing Law: The Costs of the Exclusionary Rule, and Balancing Costs and Benefits

The first paragraph to post 1:

This is my first post in a planned series of posts on why the good faith exception to the exclusionary rule does not apply when a police officer conducts a search that is lawful when it occurs that is later ruled unlawful before the conviction is final. This issue is being litigated all over the country right now thanks to a clash of two recent Fourth Amendment cases, Herring v. United States, — U.S. — (2009) and Arizona v. Gant, 556 U.S. ___ (2009). Herring has language suggesting a broad approach to the good faith exception, while Gant ruled a common and widely-accepted law enforcement practice unconstitutional. The combination of the two cases raises a question: Should the exclusionary rule apply for the many violations that occurred before Gant was handed down, or does the good faith exception apply so the evidence is admitted? Here is post #1: The Context of the Good-Faith Exception.

Rodney Balko in Reason.com: 4.5 SWAT Raids Per Day / Maryland’s SWAT transparency bill produces its first disturbing results:

Cheye Calvo’s July 2008 encounter with a Prince George’s County, Maryland, SWAT team is now pretty well-known: After intercepting a package of marijuana at a delivery service warehouse, police completed the delivery, in disguise, to the address on the package. That address belonged to Calvo, who also happened to be the mayor of the small Prince George’s town of Berwyn Heights. When Calvo’s mother-in-law brought the package in from the porch, the SWAT team pounced, forcing their way into Calvo’s home. By the time the raid was over, Calvo and his mother-in-law had been handcuffed for hours, police realized they’d made a mistake, and Calvo’s two black Labradors lay dead on the floor from gunshot wounds.

As a result of this colossal yet not-unprecedented screw-up, plus Calvo’s notoriety and persistence, last year Maryland became the first state in the country to make every one of its police departments issue a report on how often and for what purpose they use their SWAT teams. The first reports from the legislation are in, and the results are disturbing.

Defendant did not show that the traffic stop and computer checks were unreasonable in their length. [What happened to the burden of proof for the government to prove that the stop was reasonable since it was a warrantless stop and search? Who has the burden of proof anyway?] United States v. Garcia-Santos, 2010 U.S. Dist. LEXIS 16069 (E.D. Tex. February 16, 2010).*

Defendant’s 2255 IAC argument about his search was not an issue for the jury on guilt or innocence. Garner v. United States, 2010 U.S. Dist. LEXIS 16090 (D. Kan. February 22, 2010):

Petitioner’s last two arguments, that his attorney failed to argue and present evidence to the jury regarding claims of Fourth Amendment violations, would not have impacted the jury’s verdict. In fact, arguments regarding Fourth Amendment violations are not proper arguments for counsel to make to a jury. This court properly addressed these legal issues on petitioner’s motion to suppress. …

The defendant’s stop was reasonable in length, and the defendant was found to have cooperated with the officer. Alternatively, the officer had reasonable suspicion to detain defendant. United States v. Rodriguez-Lara, 2010 U.S. Dist. LEXIS 16371 (D. Utah January 27, 2010).*

Motion to suppress without argument was denied. United States v. Beliveau, 2010 U.S. Dist. LEXIS 15981 (D. Minn. January 22, 2010).*

A path from defendant’s house to a marijuana patch was nexus to the house, and there was thus probable cause for the search warrant. United States v. Witherspoon, 2010 U.S. Dist. LEXIS 16965 (W.D. Ky. February 24, 2010).*

Anonymous tip from a person on the street, in an area well known for gun violence, reporting to police officers that there was a man with a gun was sufficient to give reasonable suspicion when critical facts panned out. United States v. Stallings, 2010 U.S. Dist. LEXIS 15851 (E.D. Pa. February 22, 2010):

Although no two search and seizure cases present precisely the same facts, Valentine nonetheless controls here with respect to the reliability of the tip given to Officers Rosado and Marcellino. In a neighborhood known for gun violence, a woman stopped the Officers to report that a man in a distinctive car a block away had a gun. The Officers were able to assess the woman’s credibility as she spoke to them, and their immediate response indicates that they found her credible. See Valentine, 232 F.3d at 355 (“From the fact that the officers acted, and acted quickly, after receiving the tip, a court may deduce that the officers thought the tipster’s demeanor, voice, and perhaps a host of other factors supported the reliability of the tip.”); see also United States v. Nelson, 284 F.3d 472, 480 (3d Cir. 2002) (anonymous in person tip has “greater reliability … because the officers had an opportunity to appraise the witness’s credibility through observation”). Although in their hurry to investigate, the Officers failed to obtain the woman’s name, I am “not going to second-guess the officers’ decision to pursue the suspect immediately.” Valentine, 232 F.3d at 355. Moreover, although “[w]hat matters for our purposes is not that the officers could guarantee that they could track down the informant again,” the Officers had the “opportunity to find the informant if the tip did not pan out. ” Id.

In any event, the “tip” did “pan out.” Once they drove around the corner, the Officers were able immediately to corroborate aspects of what the woman had told them: the car, its location, and its driver matched her descriptions. … In these circumstances, I conclude that under Valentine the woman’s tip was reliable.

Of course, “the reliability of a tip … is not all that we must consider in evaluating reasonable suspicion; the content of the tip must also be taken into account, as well as other surrounding circumstances.” Id. Here, the context and surrounding circumstances further support a finding of reasonable suspicion. The woman reported that a man had a gun at night in an area prone to gun violence and police shootings.

The Federal Rules Committee has proposed a new F.R.Crim. P. 4.1 on applications for warrants, which will replace some of Rule 41 effective December 1, 2011:

Rule 4.1. Complaint, Warrant, or Summons by Telephone or Other Reliable Electronic Means
(a) In General. A magistrate judge may consider information communicated by telephone or other reliable electronic means when deciding whether to approve a complaint or to issue a warrant or summons.
(b) Procedures. If a magistrate judge decides to proceed under this rule, the following procedures apply:
(1) Taking Testimony Under Oath. The judge must place under oath — and may examine — the applicant and any person on whose testimony the application is based.
(2) Recording Testimony. The judge must make a verbatim record of the testimony with a suitable recording device, if available; by a court reporter; or in writing. But a written summary or order suffices if the testimony is limited to attesting to the contents of a written affidavit submitted by reliable electronic means.
(3) Certifying Testimony. The judge must have any verbatim recording or court reporter’s notes transcribed, certify the transcription’s accuracy, and file a copy of the record and the transcription with the clerk. But the judge must simply sign and file with the clerk any written verbatim record or any written summary or order.
(4) Preparing a Proposed Duplicate Original of a Complaint, Warrant, or Summons. The applicant must prepare a proposed duplicate original of a complaint, warrant, or summons, and must read or otherwise transmit its contents verbatim to the judge.
(5) Preparing an Original Complaint, Warrant, or Summons. If the applicant reads the contents of the proposed duplicate original, the judge must enter those contents into an original complaint, warrant, or summons. If the applicant transmits the contents by reliable electronic means, that transmission may serve as the original.
(6) Modification. The judge may modify the complaint, warrant, or summons. The judge must transmit the modified version to the applicant by reliable electronic means or direct the applicant to modify the proposed duplicate original accordingly.
(7) Signing. If the judge decides to approve the complaint, or to issue the warrant or summons, the judge must immediately:
(A) sign the original;
(B) enter on its face the exact date and time it is approved or issued; and
(C) transmit it by reliable electronic means to the applicant or direct the applicant to sign the judge’s name on the duplicate original.
(c) Suppression of Evidence Limited. Absent a finding of bad faith, evidence obtained from a warrant issued under this rule is not subject to suppression on the ground that issuing the warrant in this manner was unreasonable under the circumstances.

This rule has a few problems that NACDL has commented on. It is a long way from being adopted.

For a little over two weeks now, ever since the press got wind of an oral argument in the Third Circuit about a cell phone tracking information appeal by the government (see prior post: Fourth Amendment news–CA3 to hear argument on accessing cell phone location data), the blogosphere has been inundated with articles about the “Obama administration’s” [it is his Justice Department, after all] efforts to get this information in a case involving drugs. The bloggers seemed outraged at the administration making this effort to get cell phone tracking information without a showing of probable cause under the Fourth Amendment. Or does the Fourth Amendment or any statute require it?

Where have all these people and this outrage been for the last four and a half years? Clearly not paying attention. This issue is not new and it started under the Bush Administration. I’ve watched this issue percolate on the Internet for two weeks, appalled, reading the blogs and all the Fourth Amendment outrage gets voiced against this administration, like it was its idea and just now. Finally, today, Libertarian Bob Barr in the Atlanta Journal-Constitution at least points out that this derives from the Bush Administration. What took so long?

The case that was argued is two years old: In the Matter of the Application of the United States of America for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 534 F. Supp. 2d 585 (W.D. Pa. February 19, 2008), posted here. As noted by the USMJ in the Western District of Pennsylvania, this issue dates from late 2005. See In re the Applications of the United States for Orders Authorizing the Disclosure of Cell Cite Information, 2005 WL 3658531 (D.D.C. Oct. 26, 2005).

Cases have gone both ways on cell phone tracking data. The Pennsylvania case will be just another case showing the conflict in the courts. Constitutional litigation being what it is, this issue may be years from Supreme Court review, unless they decide to take this case just to uphold the government.

Personally, I trust most USMJs more than appellate judges, particularly since most federal appellate judges in this country are Republican appointees with relatively predictable Fourth Amendment philosophies, as is the Supreme Court, where the exclusionary rule hangs by the predilection of just one seemingly erratic voting Justice: Anthony Kennedy. Moreover, USMJs are appointed for merit, not who they know unlike the Art. III judges.

We are like the proverbial frog in the ever heating water, not noticing the heat until we are cooked. As Martin Niemöller warned, one can be too late to be properly outraged, or do anything about it.