A juvenile was arrested for being in a room where marijuana was found after the police asked generally who’s marijuana it was, and nobody ‘fessed up to it. So, everybody was arrested, and the juvenile was compelled to give a urine sample, which was positive. The juvenile’s arrest was without probable cause. In re H.L.S., 2009 SD 92, 774 N.W.2d 803 (2009):

[*P19] The State argues that H.L.S. was arrested because the contraband was found in the apartment in plain view in the same room in which H.L.S. was located. The State further argues that once the occupants of the apartment declined to answer Bobzien’s question regarding the ownership of the marijuana, Bobzien had individualized suspicion as to each of the six occupants. The State concludes that H.L.S.’s arrest was based on more than “mere propinquinty.” The State argues that Bobzien as one of the officers present on the scene is charged with the collective knowledge of all the officers present during the search and arrest.

[*P20] However, there is no testimony in the record from Bobzien or anyone else as to what other facts he may have been told by the entry team officers regarding H.L.S.’s presence and location relative to the contraband at the time they first entered the apartment. According to the record, Bobzien was informed by the entry team that the marijuana stems, seeds and flakes were found in plain view and in the living room by the officers several minutes before Bobzien entered the apartment. However, H.L.S.’s location relative to the contraband at the time those officers first entered the apartment was not a part of Bobzien’s testimony at the suppression hearing. The transcript indicates that Bobzien testified he saw H.L.S. in handcuffs and seated on the couch in the immediate vicinity of the contraband once he had entered the apartment. Without the critical information as to where H.L.S. was at the time the entry team officers first entered, there was nothing in the record to indicate Bobzien had sufficient facts to independently suspect H.L.S. knew of the presence of the contraband. As such, all that Bobzien could conclude was that H.L.S. was present in the apartment at the same time as the marijuana. The State’s argument that Bobzien possessed sufficient cumulative facts upon which he could draw an inference that H.L.S. knew of the presence and the character of the drug fails for lack of any facts in the record that may have been relayed to Bobzien by the entry team as to H.L.S.’s location. While such facts may have been known to Bobzien, those facts were never entered into the record at the suppression hearing.

[*P21] Without the critical facts as to where H.L.S. was at the time the entry team officers entered the apartment, which may well have been known to Bobzien at the time of the arrest, there is nothing to support a finding of probable cause that H.L.S. had the requisite awareness of the presence and the character of the contraband. Without that awareness, it was not possible for a reasonable officer to conclude that H.L.S. intentionally and consciously possessed the drug in common with the other occupants of the apartment. Therefore, law enforcement did not have sufficient probable cause for H.L.S.’s warrantless arrest.

During a patdown, the officer felt a bulge which he knew was not a weapon. He asked the defendant what it was, and the defendant said “It’s drugs.” Miranda had not attached at that point, so the statement and the drugs were admissible. United States v. Alcantara, 2009 U.S. Dist. LEXIS 114990 (S.D. N.Y. December 2, 2009):

The legal analysis of what occurred after Molina felt the bulge in Alcantara’s pocket hinges on Molina’s subjective belief at the time. If Molina had been uncertain as to whether the bulge was a weapon, he would have been entitled simply to remove it. See, e.g., United States v. Oates, 560 F.2d 45, 62 (2d Cir. 1977). Molina testified, however, that although he could not tell precisely what the bulge was, he knew it was not a weapon. (10/28/09 Tr. at 55-56.) This led Molina to ask Alcantara what was in his pocket, which elicited Alcantara’s response that it was drugs. Because Alcantara had not been given a Miranda warning at this point, the exchange between Molina and Alcantara potentially implicated the defendant’s Miranda rights. We address this Miranda issue posed by the patdown in the section directly below.

Ultimately, however, it is only the admissibility of Alcantara’s statements during the patdown — not the physical evidence recovered from his pocket — that depends on whether a Miranda warning should have been given. Alcantara may not have understood that he had a right to refuse to answer Molina’s question, but he nevertheless told Molina that the bulge consisted of drugs. At that point, Molina had probable cause to reach into Alcantara’s pocket and retrieve the drugs, see Oates, 560 F.2d at 63, which is legally sufficient to recover the drugs even if Alcantara’s response to Molina’s question during the patdown was an improperly un-Mirandized statement. See generally United States v. Morales, 788 F.2d 883, 886 (2d Cir. 1986) (absent trickery or coercion, an improperly un-Mirandized statement can furnish probable cause). Thus, under any Miranda scenario, there would be no basis for suppressing the cocaine recovered from Alcantara’s pocket.

The defendant was arrested on drug charges, and the police let him keep his cellphone while they discussed the possibility he would snitch for them. When it became apparent he wouldn’t snitch, they took the cellphone and searched it. It was still incident to the arrest. United States v. Georgiou, 2009 U.S. Dist. LEXIS 114729 (E.D. Pa. December 7, 2009):

As previously stated, Agent Joanson testified that at the time Georgiou was placed into custody on September 17, 2008, the Government believed that there was a possibility that Georgiou would cooperate with the FBI and “make recordings against other targets.” (N.T. at 41-42.) The reason why Georgiou was not segregated from his devices, according to Agent Joanson, was because the FBI “like[s] to have the individual to have their cell phone or their Blackberry so that when they call these other targets, they have their own equipment and their own phone number.” (Id. at 42.) Agent Joanson further explained that “when it became less and less likely that Mr. Georgiou was going to cooperate in that fashion, we separated him from his electronic devices.” (Id.) In light of Agent Joanson’s testimony, the Court finds that the delay in seizing Georgiou’s devices was entirely reasonable under the circumstances.

Defendant’s stop was without reasonable suspicion of criminal activity, and his subsequent flight didn’t rise to the level of reasonable suspicion. State v. Coleman, 2009 Ohio 6471, 2009 Ohio App. LEXIS 5411 (8th Dist. December 10, 2009):

[*P24] In this case, there is no question that once Coleman took off running, the police had reasonable suspicion of criminal activity. The question here is whether the police had reasonable suspicion to pull Coleman out of his vehicle — based upon very few articulable facts. We find that based on Detective Lewandowski’s testimony, he did not have reasonable suspicion to justify a Terry stop of Coleman. We further find that this is not the “close case” presented in Pettegrew.

[*P25] Detective Lewandowski testified that he and his partner received reports from an undercover officer that there was a woman flagging down cars in the vicinity of East 71st Street and Wade Park Avenue, an area of high-drug activity. They arrived, did not see the woman, but did see Coleman in his vehicle with two men either standing by or leaning in Coleman’s car (he first said several people “standing by” and later said two men “leaning in”). As Detective Lewandowski approached, two of the men dispersed. Coleman was immediately pulled out of his car at that point by another officer.

[*P26] Reviewing the totality of the circumstances in this case, we find that the state did not present specific or articulated facts sufficient to justify a Terry stop of Coleman. Everything the police did following this illegal stop was also improper.

The defendant could be ordered from the car during a traffic stop, and the officer saw a hypodermic needle cap at the defendant’s feet after he got out. They were in a high crime area, and that was reasonable suspicion. State v. McClendon, 2009 Ohio 6421, 2009 Ohio App. LEXIS 5378 (10th Dist. December 8, 2009).*

The motion to suppress should not have been granted. It was signed by a judicial officer and not an executive official as required by law. Also, the trial court’s looking at the prosecutor’s legal advice and not the police conduct was erroneous under the good faith exception. [If it was valid, why apply GFE?] State v. Commins, 2009 Ohio 6415, 2009 Ohio App. LEXIS 5368 (12th Dist. December 7, 2009).*

DOJ prosecutor Jonathan Tukel had a reasonable expectation of privacy in personal e-mail to his lawyer sent from a DOJ computer where the government permitted personal use of the government e-mail account. It was his e-mails being sought, so he was permitted to intervene in another’s case. Convertino v. United States DOJ, 2009 U.S. Dist. LEXIS 115050 (D. D.C. December 10, 2009):

Mr. Tukel reasonably expected his e-mails with his personal attorney to remain confidential. (Id.) Case law in this jurisdiction is not directly on point but New York gives the Court some direction. “[T]he question of privilege comes down to whether the intent to communicate in confidence was objectively reasonable.” In re Asia Global Crossing, Ltd., 322 B.R. 247, 258 (S.D.N.Y. 2005). In order for documents sent through e-mail to be protected by the attorney-client privilege there must be a subjective expectation of confidentiality that is found to be objectively reasonable. See id. at 257 (outlining four factors to determine reasonableness; “(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee’s computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?”). Each case should be given an individualized look to see if the party requesting the protection of the privilege was reasonable in its actions. See Curto v. Med. World Commc’ns, Inc., No. 03-CV-6327, 2006 WL 1318387, *6 (E.D.N.Y. May 15, 2006); see also O’Connor v. Ortega, 480 U.S. 709, 718 (1987) (“Given the great variety of work environments, … the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.”).

On the facts of this case, Mr. Tukel’s expectation of privacy was reasonable. The DOJ maintains a policy that does not ban personal use of the company e-mail. Although the DOJ does have access to personal e-mails sent through this account, Mr. Tukel was unaware that they would be regularly accessing and saving e-mails sent from his account. (See Tukel’s Mot. and Mem. of Law in Opp’n to Pl.’s Mot. to Compel at 4; see also Pl.’s Opp’n to Non-Party Tukel’s Mot. to Intervene at 5-6.) Because his expectations were reasonable, Mr. Tukel’s private e-mails will remain protected by the attorney-client privilege.

Hat tip to Blog of the Legal Times: District Court Finds Personal E-Mail From Work Still Privileged, by Tresa Baldas:

The party trying to get the e-mails is former federal prosecutor Richard Convertino, who lost his job after his convictions in a high-profile terrorism trial in Detroit were overturned in 2004 due to prosecutorial misconduct. Convertino, who believes he was retaliated against for blowing the whistle on incompetence in the Bush administration’s war on terror, is trying to find out who leaked confidential information about an investigation into his conduct to the Detroit Free Press.

Convertino believes Tukel’s e-mails to his lawyer may shed some light on the matter.

Defendant’s disclosure on a jail telephone call that he secreted a gun in a closed container was not a waiver of an expectation of privacy. Aside from the use of the telephone, he otherwise was protective of privacy. Voluntary disclosure to law enforcement officers is far different. United States v. Monghur, 576 F.3d 1008 (9th Cir. August 11, 2009), amended 2009 U.S. App. LEXIS 26528 (9th Cir. December 4, 2009):

We think the Seventh Circuit’s reasoning in Cardona-Rivera makes perfect sense. When made to a law enforcement officer, an unequivocal, contemporaneous, and voluntary disclosure that a package or container contains contraband waives any reasonable expectation of privacy in the contents. See Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977) (recognizing that “reasonableness” remains the touchstone under the Fourth Amendment). The Constitution does not require the formality of a warrant in such circumstances.

The facts of this case are, however, sufficiently distinguishable from Cardona-Rivera that the logical underpinnings of the principle announced there find no parallel in the instant case. Cognizant that jail personnel might be listening, Monghur attempted to disguise the subject matter by using ambiguous, generic language to describe the handgun and its whereabouts: “the thing” was in a closet, “in the green.” It is relevant that Monghur never explicitly identified the contraband at issue. Although Agent McCamey had his reasoned suspicions, “the thing,” viewed in context, could have been a number of things, including contraband. Nor did Monghur specifically identify the container itself. Indeed, at the suppression hearing, Agent McCamey testified that based on the conversations he did not know that he was looking for a green plastic container when agents went to Wilson’s apartment. Perhaps most significantly, coded language aside, Monghur never made a voluntary disclosure directly to law enforcement. He was informing an associate where to find his gun in the hope that it could be removed before its discovery. That Monghur acted covertly knowing that calls were monitored or recorded–and that law enforcement might review the conversations–is materially different from directly and intentionally admitting to a police officer the contraband contents of a specific package or closed container.

. . .

Nothing about his jailhouse conversations with Bousley, which law enforcement later overheard, operates as a “direct and explicit” waiver of an expectation of privacy in a container hidden elsewhere. Cardona-Rivera, 904 F.2d at 1156. Monghur’s efforts to conceal the subject matter based on what he said on the phone demonstrate both an objective and subjective intention to preserve privacy—not to relinquish it. We therefore reject the Government’s position that Monghur waived his expectation of privacy in the closed container through his statements on the telephone.

A search warrant for defendant’s DNA has shown probable cause and nexus. United States v. Abari, 2009 U.S. Dist. LEXIS 114120 (D. Minn. November 19, 2009).*

“‘A warrant affidavit [need not contain] an averment of previous reliability, the appropriate inquiry always being whether the informant’s present information is truthful and reliable.’ United States v. Scalia, 993 F.2d 984, 987 (1st Cir. 1993) (citing United States v. Cochrane, 896 F.2d 635, 641 (1st Cir. 1990)). Information provided by a confidential informant is sufficiently reliable to support probable cause if independently corroborated. See United States v. Fulgham, 143 F.3d 399, 401 (8th Cir. 1998).” This was. United States v. Giessinger, 2009 U.S. Dist. LEXIS 114218 (D. Neb. November 16, 2009).*

An Internet child pornography investigation in Switzerland led to information being sent to ICE in the U.S. with a screen name which ICE was able to link to the defendant by a P.O. box. This was probable cause for a search warrant for defendant’s computer in Minnesota. United States v. Carruthers, 2009 U.S. Dist. LEXIS 113741 (D. Minn. December 7, 2009).*

Technology Revolution and the Fourth Amendment

Technology Revolution and the Fourth Amendment by Michael Lissner on Cyberlaw.

Exotic dancer wrongfully strip searched at work during execution of a SW

NM exotic dancer wins $5k judgment for an unreasonable strip search conducted during the execution of search warrant in the club she worked in. If the cop had only paid for the dance …

Update: Some local news found this interesting; see, e.g., Jury: Search violated stripper’s rights and NM jury finds dancer’s rights were violated on the strip search of a stripper.

More today on LEO access to cellphone GPS

More today on TPMMuckraker on How Easy Is It For The Police To Get GPS Data From Your Phone?.

Police can in some cases track cell phone location by merely telling a court that the information is relevant to an investigation, a legal expert tells TPM — a fact that may partly explain how law enforcement racked up 8 million requests for GPS data from a single wireless carrier in a year.

An increasingly popular and easy-to-access surveillance tool for police, GPS data is not currently protected by the Fourth Amendment, and the standards for gaining access to the information are murky and highly variable. That’s partly because one of the statutes that bears on the issue was passed in the mid-1980s, before many of the technologies involved were invented. And Congress hasn’t done much to update the law since.

The issue at stake is the demise of so-called “locational privacy.”

The TPMMuckraker article links to NYTimes: A Casualty of the Technology Revolution: ‘Locational Privacy’:

A little-appreciated downside of the technology revolution is that, mainly without thinking about it, we have given up “locational privacy.” Even in low-tech days, our movements were not entirely private. The desk attendant at my gym might have recalled seeing me, or my colleagues might have remembered when I arrived. Now the information is collected automatically and often stored indefinitely.

Privacy advocates are rightly concerned. Corporations and the government can keep track of what political meetings people attend, what bars and clubs they go to, whose homes they visit. It is the fact that people’s locations are being recorded “pervasively, silently, and cheaply that we’re worried about,” the Electronic Frontier Foundation said in a recent report.

Dog sniff of defendant’s car occurred while the officer was resolving the traffic stop and waiting for radio call back, so defendant was detained for it, but not extended because of it. United States v. McBride, 2009 U.S. Dist. LEXIS 113405 (N.D. Ind. December 4, 2009):

The Defendant makes much of the use of the dog, mostly as evidence that he was being detained and was not free to leave. The video does in fact show the Defendant backing away from something that is out of the camera’s view with his hands in the air, and the officer telling him to come back and not to back into traffic. However, the fact that the Defendant was not free to leave is not a point of contention. When the dog performed the free air sniff around the car, the traffic violations were not yet resolved. In fact, Officer Gasvoda was still in the process of explaining why he had stopped the Defendant, and continued to do so as Officer Heck circled the car with the leashed dog. He had not yet verified any of the information provided by the Defendant, or determined the status of the unlicensed car or the Defendant’s driving status. Thus, the Defendant would not have been free to leave regardless of the dog’s presence. See Arizona v. Johnson, 129 S. Ct. at 784 (“For the duration of a traffic stop, … a police officer effectively seizes everyone in the vehicle, the driver and all passengers.”). Simply using a drug-sniffing dog during an otherwise lawful traffic stop does not implicate a defendant’s legitimate privacy interests. Illinois v. Caballes, 543 U.S. 405, 409 (2005). If the Defendant means to argue that the presence of the dog subjected him to restraints comparable to those associated with formal arrest, the Court does not find legal support for such a contention.

Defendant claimed that the search of his car was invalid under Gant because he was arrested for failure to identify. His arrest, however, permitted the search under the inventory doctrine because the car was going to have to be towed. There was at least an indication that there was a gun, but the court declined to decide the factual dispute. United States v. Cartwright, 2009 U.S. Dist. LEXIS 113428 (S.D. Ind. December 1, 2009).*

Defendant was Mirandized and agreed to talk to the officers, and this was a factor in finding his consent voluntary on the totality of the circumstances. United States v. Jones, 2009 U.S. Dist. LEXIS 113316 (E.D. Pa. November 24, 2009).*

Frisk of person not named in search warrant was justified by his movements that created apprehension he was armed or had contraband. United States v. White, 2009 U.S. Dist. LEXIS 112795 (W.D. Mo. November 16, 2009).*

Defendant’s consent was shown to be voluntary and not coerced. United States v. Dunning, 2009 U.S. Dist. LEXIS 112849 (W.D. Mo. November 9, 2009).*

Circuit court erred in requiring the state to have a tip for a knock-and-talk and not a hunch. This raised the burden of proof. State v. Navarro, 19 So. 3d 370 (Fla. App. 2d DCA 2009):

Furthermore, the policy behind knock-and-talk encounters supports this conclusion. The rationale for a knock and talk is that

[a]bsent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s ‘castle’ with the honest intent of asking questions of the occupant thereof–whether the questioner be a pollster, a salesman, or an officer of the law.

Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964). “Thus, ‘[o]fficers are allowed to knock on a residence’s door or otherwise approach the residence seeking to speak to the inhabitants just a[s] any private citizen may.'” United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006) (first alteration in original) (quoting Estate of Smith v. Marasco, 318 F.3d 497, 519 (3d Cir. 2003)). The circuit court’s ruling conflicts with the proposition that police officers may approach a residence and speak to the residents just as any private citizen may. Thus the circuit court fell into error when it ruled that the knock-and-talk encounter at issue in this case amounted to illegal police conduct.

Our conclusion about the legality of the knock-and-talk encounter brings us to the question of the standard of proof applicable to the determination of the voluntariness of the consent search:

Where the state asserts it had the right to search … despite the absence of a warrant because the defendant consented to the search, the state has the burden to prove that consent was freely and voluntarily given. The burden of proof in these cases depends on whether there is invalid police conduct prior to obtaining the consent. “Under ordinary circumstances the voluntariness of the consent to search must be established by preponderance of the evidence.” With invalid police conduct like prolonged detention, threats to obtain a warrant, or repeated requests for consent, the burden of proof is elevated to the clear and convincing standard.

Dormezil v. State, 754 So. 2d 168, 169 (Fla. 5th DCA 2000) (citations omitted) (quoting Denehy v. State, 400 So. 2d 1216, 1217 (Fla. 1980)). Here, the circuit court applied the clear and convincing evidence standard of proof because it found illegal police conduct based on its erroneous interpretation of the law concerning knock-and-talk encounters. But based on our conclusion above and because the knock and talk was not otherwise illegal, the appropriate standard of proof was preponderance of the evidence. Accordingly, we reverse the circuit court’s order and remand for reconsideration of the motion to suppress under the proper standard of proof. See State v. T.L.W., 783 So. 2d 314, 317 (Fla. 1st DCA 2001).

Criticizing Comprehensive Drug Testing, posted here, is United States v. Farlow, 2009 U.S. Dist. LEXIS 112623 (D. Me. December 3, 2009). In this case, the defendant asserted that the search could be limited to hash marks on an image, but a government witness testified that the hash marks changed with every save of the image. Therefore, it was not required as a limitation on the search.

Admittedly, if CDT applied here, and the Government had forsworn or been ordered to forswear the plain view doctrine in searching, and a third party had segregated all photographs not directly related to the search for evidence of the state of New York crimes, either Sgt. Lang would not have discovered the child pornography or the third party would have been compelled not to have disclosed its existence. But, no other circuit has gone as far as the Ninth to require such significant preconditions on the issuance of search warrants for computers. In the Court’s view, the far preferable approach is to examine the circumstances of each case, to assess the validity of the computer search protocol, to determine whether the police strayed from the authorized parameters of the search warrant, and to hold the police to constitutional standards in the context of a motion to suppress. If the police conduct is as egregious as the Ninth Circuit found in CDT, the Court can consider appropriate remedies. This fact-intensive, considered analysis is what Upham contemplates. Upham, 168 F.3d at 536 (stating that “[t]his problem arises in a variety of different contexts and in many permutations; matters of degree are involved and there is probably no single rule that resolves all such situations”).

In the First Circuit, Upham remains the law. Id. at 535 (stating that “a search of a computer and co-located disks is not inherently more intrusive than the physical search of an entire house for weapons or drugs”). Whether Upham authorizes a deliberate law enforcement search of Mr. Farlow’s computer for child pornography under the guise of a search for a single non-pornographic digital photograph of a bodybuilder is highly questionable. Id. (stating that “[t]he requirement of particularity arises out of a hostility to the Crown’s practice of issuing ‘general warrants’ taken to authorize the wholesale rummaging through a person’s property in search of contraband or evidence”).

But, at least in the narrow context of this motion to suppress, Mr. Farlow’s argument fails on the facts. Id. at 636 (stating that “[t]his problem arises in a variety of different contexts and in many permutations; matters of degree are involved and there is probably no single rule that resolves all situations”). Here, Sgt. Lang has declared under the penalty of perjury “[t]he only reasonable way for an examiner to locate most of the copies of a particular image is to do it visually.” Decl. of Glenn Lang at 2. Sgt. Lang rejected the defense assertion that tracking the hash mark would have led to the bodybuilder photograph, since “[e]very time one pixel of a picture is changed the hash value is completely different. If the user were to open the picture and save it to another location with a picture viewer, the hash can be changed via compression. When a file is deleted, its hash value changes.” Id. Based on this evidence, Sgt. Lang’s method of searching the Farlow computer was “about the narrowest definable search and seizure reasonably likely to obtain the images.” Upham, 168 F.3d at 535. This is especially true here, where, as the Magistrate Judge pointed out, Upham emphasized that “[t]he warrant process is primarily concerned with identifying what may be searched or seized–not how–and whether there is sufficient cause for the invasion of privacy thus entailed.” Id. at 537 (emphasis in original).

More on Sprint and GPS

See Warrantless electronic surveillance of you by Featheriver about a Ph.D. dissertation on the subject of Sprint’s cooperation with law enforcement in giving away GPS information on telephones:

Christopher Soghoian, a graduate student at Indiana University’s School of Informatics and Computing has been gathering data and analyzing data about such surveillance in preparation of his PhD dissertation. He secured and released an audio recording of “Sprint/Nextel’s Electronic Surveillance Manager, Paul Taylor, describing how his company has provided GPS location data about its wireless customers to law enforcement over 8 million times. That’s potentially millions of Sprint/Nextel customers who not only were probably unaware that their wireless provider even had an Electronic Surveillance Department, but who certainly did not know that law enforcement offers could log into a special Sprint Web portal and, without ever having to demonstrate probable cause to a judge, gain access to geolocation logs detailing where they’ve been and where they are.” [Source: Ars Technica] You can be certain that other such communications providers, for example AT&T do the same. Perhaps that Garmin GPS travel device in your vehicle can provide the same information to other companies as well.

And here: Did Sprint violate customer privacy 8 million times?

The Fourth Amendment and Email

Podcast: The Fourth Amendment and Email on the D. Ore. opinion released on October with Orin S. Kerr , Professor of Law at the George Washington University Law School and Jason Paroff Esq., Director of Computer Forensics Operations with the ESI Consulting practice at Kroll Ontrack.

Fourth Amendment protecting the innocent? and Ord

Recent case shows why the Fourth Amendment is so important discussing Ord v. District of Columbia, posted today.

Where defendant was admittedly lawfully stopped for speeding, being “asked” out of the car was not a separate seizure requiring more cause. It was valid under Mimms. United States v. McChesney, 2009 U.S. Dist. LEXIS 112197 (N.D. Ind. December 2, 2009):

The Defendant argues that Officer Hatfield impermissibly started a new seizure by asking him to exit the vehicle and commencing an investigation that was unrelated to the traffic stop. In other words, the Defendant asks the Court to break up the encounter into two or more different seizures, and apply a separate analysis to each. However, the Seventh Circuit has rejected this sort of multiple seizure analysis in favor of an overarching analysis that takes into account the traffic stop as a whole. In United States v. Figueroa-Espana, the defendant argued that once his traffic stop had been completed, any additional investigation by the police officer qualified as an improper second encounter, and any evidence produced therefrom should be excluded. The Seventh Circuit declined to adopt that framework and held that “[t]he fact that the troopers sought further information [unrelated to the traffic stop] does not render this second phase of questions a new seizure …. Rather, the events … are more appropriately analyzed as … an extension of the initial stop based on reasonable suspicion.” 511 F.3d 696, 702 (7th Cir. 2007) (citing United States v. Rivera, 906 F.2d 322-23 (7th Cir. 1990) (finding that an officer’s request to search a car, after giving the motorist a written warning, returning his identification, and indicating that he was free to leave, was part of a consensual encounter and not a new seizure)).

“Given that the stop was proper, Trooper Rindlisbacher did not violate the Fourth Amendment by conducting a license and registration check. See U.S. v. Chavez-Valenzuela, 268 F.3d 719, 724 (9th Cir. 2001), amended 279 F.3d 1062 (9th Cir. 2002). Thus, he properly discovered that none of the occupants in the vehicle owned the car or had a valid driver’s license.” The search of defendant’s purse was not invalid. She was allowed to go, but the ride she called had not arrived, and the officer wasn’t going to wait around any longer, so he searched her purse by consent before she got in the car so he could drive her. [The video of the stop supported it.] United States v. Rojas, 2009 U.S. Dist. LEXIS 112346 (D. Idaho December 2, 2009).*

On Talking Points Memo: Police Tapped Sprint Customer GPS Data 8 Million Times In A Year. On Akron Law Cafe, How Private Is GPS Data?, it is noted that Sprint essentially admits the practice. The Akron article has links to other materials.

What is your “reasonable expectation of privacy” when you are carrying a tracking device? Reason enough to change from Sprint? Or, will every cell provider be doing it?

Excessive and unnecessary destruction of property during execution of a search warrant states a claim for relief. Pacific Marine Ctr., Inc. v. Silva, 2009 U.S. Dist. LEXIS 110617 (E.D. Cal. November 30, 2009):

“[O]fficers executing search warrants on occasion must damage property in order to perform their duty.” Dalia v. United States, 441 U.S. 238, 99 S.Ct 1682, 60 L. Ed. 2d 177 (1979). “Destruction of property that is not reasonably necessary to effectively execute a search warrant may violate the Fourth Amendment.” Tarpley v. Greene, 684 F.2d 1, 221 U.S. App. D.C. 227 (D.C. Cir. 1982). “The general touchstone of reasonableness which governs Fourth Amendment analysis, … governs the method of execution of [a search] warrant. Excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search not subject to suppression.” U.S. v. Ramirez, 523 U.S. 65, 71, 118 S. Ct. 992, 140 L. Ed. 2d 191 (1998) (“[e]xcessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful.”); See Liston v. County of Riverside, 120 F.3d 965, 979 (9th Cir. 1997) (“only unnecessarily destructive behavior, beyond that necessary to execute a warrant effectively, violates the Fourth Amendment”). “An officer’s conduct in executing a search is subject to the Fourth Amendment’s mandate of reasonableness from the moment of the officer’s entry until the moment of departure.” San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 971 (9th Cir.), cert denied, 546 U.S. 1061, 126 S. Ct. 796, 163 L. Ed. 2d 627 (2005). Therefore, the touchstone of conduct during a search is “reasonableness.”

Plaintiffs have alleged conduct which may go beyond “reasonableness” to execute the warrant. Plaintiffs have adequately plead that defendant Essegian unnecessarily destroyed property during the search. Plaintiff alleges that the business was “ransacked” and all of the business documents were thrown about the business premises, and the surveillance equipment was ripped from the wall. In his motion, Essegian asks the Court to make factual determinations that Essegian was justified in doing the things alleged in the complaint as part of the scope of the search. Whether the conduct was necessary to effectively execute the search warrant is a factual question which cannot be determined at this point of the litigation. At this stage of the pleadings, the Court must accept as true the allegations of the complaint and construe the pleading in the light most favorable to plaintiffs. Lazy Y. Ranch LTD v. Behrens, 546 F.3d at 588.

More Safford

Safford Unified School District No. 1 v. Redding is noted in Harvard Law Review.

Community Caretaking Function in Wisconsin

In the Wisconsin State Bar journal: Wisconsin Supreme Court to consider reach of police ‘community caretaker’ as warrant exception, about State v. Pinkard, set for oral argument January 7.

SCOTUS denied cert in Virginia v. Rudolph (pdf p. 4) today, listed here from SCOTUSBlog’s “petitions to watch.”

Prior post here on the Virgina Supreme Court opinion.

Defendant was parked outside a closed gas station at 8 pm. The officer drove around the building and the car was gone. The officer stopped the car, and marijuana was found. Viewing the totality of the circumstances objectively, even though it was 8:00 p.m. and there had been robberies and burglaries in the area, the circumstances did not supply a particularized and objective basis to suspect that defendant’s observed behavior was a precursor to a break-in, robbery, or any other criminal activity on his part. Rudolph v. Commonwealth, 277 Va. 209 (February 27, 2009), cert. denied 09-102 (November 30, 2009).

Officers responded to a shots fired call at an apartment, and, when they got there, they saw shell casing in the common area and the door broken open. They were justified in making an entry under the emergency exception to check for injured persons. Aguey-Zinsou v. State, 296 Ga. App. 319, 674 S.E.2d 366 (2009).*

Apparent authority was not shown. The testimony of two police officers did not amount to evidence that the grandfather exercised actual control over defendant’s bedroom. The officers encountered a closed bedroom door, heard the grandfather say he did not sleep in defendant’s bedroom, and witnessed defendant open the bedroom door. The apparent authority over the bedroom was ambiguous at best. Hubert v. State, 2009 Tex. App. LEXIS 1323 (Tex. App.—Corpus Christi–Edinburg February 26, 2009).*

A protective sweep under Buie can occur after an arrest outside if there is reason to believe that a danger lurks inside. United States v. Kilfoil, 2009 U.S. Dist. LEXIS 110290 (M.D. N.C. November 23, 2009)*:

Though not noted by the parties, it appears well-established in the majority of circuits that the protective sweep exception, as defined in Buie, justifies entry into a residence where an arrest is made outside, even in the absence of a warrant or probable cause. See, e.g., Wilson v. Morgan, 477 F.3d 326, 337-39 (6th Cir. 2007) (finding, in context of claim under 42 U.S.C. § 1983, that United States v. Colbert, 76 F.3d 773, 776-78 (6th Cir. 1996), justifies protective sweep of home interior where arrest made outside); United States v. Maldonado, 472 F.3d 388, 394-95 (5th Cir. 2006) (upholding protective sweep of house where arrest made in driveway); United States v. Paopao, 469 F.3d 760, 767 (9th Cir. 2006) (permitting protective sweep of apartment based on reasonable belief that at least one robber remained inside though arrest made outside); United States v. Lawlor, 406 F.3d 37, 41 (1st Cir. 2005) (noting that “an arrest that occurs just outside the home can pose an equally serious threat to arresting officer as one that occurs inside the home”); United States v. Cavely, 318 F.3d 987, 995-96 (10th Cir. 2003) (stating that, “[d]epending on the circumstances, the exigencies of a situation may make it reasonable for officers to enter a home without a warrant in order to conduct a protective sweep”); United States v. Henry, 48 F.3d 1282, 1284 (D.C. Cir. 1995) (upholding protective sweep inside home where arrest made outside); United States v. Oguns, 921 F.2d 442, 446-47 (2d Cir. 1990) (allowing protective sweep of apartment where officers could have reasonably believed that people inside heard them arresting defendant outside); United States v. Delgado, 903 F.2d 1495, 1502 (11th Cir. 1990) (upholding protective sweep inside warehouse where reasonable belief existed as to danger to agents outside).

Defendant was arrested on an arrest warrant and handcuffed outside his house. Officers asked him where his gun was, and he said he didn’t want anybody going in the house. They said they just wanted the gun, and they could go in and get it and there would be no search of the house. The defendant then consented to the search and it was found voluntary because the conversation was short and polite and the search was limited. United States v. Burke, 2009 U.S. Dist. LEXIS 110221 (E.D. N.Y. October 16, 2009).*

Defendant did not object to a consent search that escalated to removing seats and carpeting, and failure to object is a factor in consent [I don’t buy this anymore]. Once it was apparent to the officers that there was a hidden compartment, there was probable cause and it was not unreasonable for officers to break open the vehicle. United States v. Bugarin, 2009 U.S. Dist. LEXIS 109058 (D. Kan. November 23, 2009).*